State v. Barbour

• Decision Date: 10 June 1941
• Docket Number: 37458
• Parties: The State v. Charles Barbour, Appellant
• Court: Missouri Supreme Court

151 S.W.2d 1105

347 Mo. 1033

The State v. Charles Barbour, Appellant

No. 37458

Supreme Court of Missouri

June 10, 1941

Appeal from Morgan Circuit Court; Hon. Sam C. Blair, Judge.

Reversed and remanded.

Elliot M. Dampf for appellant.

(1) The law presumes that a confession, induced by persons in authority at time when defendant is in jail, is involuntary. State v. Keller, 174 S.W. 67; State v White, 292 S.W. 411; State v. Williamson, 99 S.W.2d 76. (2) Confession induced by hope of leniency or clemency, not necessarily of escaping punishment, would be inadmissible. State v. Ball, 262 S.W. 1043; State v. Williamson, 99 S.W.2d 76. (3) Confession induced by hope of clemency, fear of punishment, or violence from officers inadmissible. State v. Hart, 237 S.W 473. (4) Whether a confession, made while under arrest, is involuntary, depends on the character of accused, age, sex disposition, and past experience. State v. Powell, 167 S.W. 559. (5) Both the Federal and State Constitutions are always liberally construed to prevent compulsory self-incrimination. State v. Thomas, 157 S.W. 330.

Roy McKittrick, Attorney General, and Ernest Hubbell, Assistant Attorney General, for respondent.

(1) Record proper. State v. Cantrell, 142 S.W.2d 1057; State v. Little, 248 S.W. 926. (2) The indictment. Secs. 4440, 4448, 4456, R. S. 1939. (3) Verdict and judgment. (a) Secs. 4056, 4064, R. S. 1929; State v. North, 85 S.W.2d 47, 337 Mo. 470; State v. Jenkins, 246 S.W. 911; State v. Enochs, 98 S.W.2d 688, 339 Mo. 953; State v. Brown, 73 Mo. 634; State v. Hecox, 83 Mo. 537; State v. Schuchmann, 133 Mo. 117; State v. Wilson, 125 S.W. 485, 225 Mo. 503; State v. Lackey, 132 S.W. 616, 230 Mo. 714; State v. Brinkley, 146 Mo. 41; State v. Nicholas, 222 Mo. 433. (b) Sec. 4048, R. S. 1929; State v. Tipton, 271 S.W. 57, 307 Mo. 500; State v. Crunkleton, 278 S.W. 986; State v. Goddard, 289 S.W. 653, 316 Mo. 172; State v. Pryor, 119 S.W.2d 255; State v. Taylor, 136 Mo. 66, 37 S.W. 907; State v. Gentry, 329 Mo. 291; 16 C. J., p. 1103, sec. 2587; State v. Hinton, 253 S.W. 723, 299 Mo. 507; State v. Shannon, 237 S.W. 466; State v. Hodges, 237 S.W. 1000; State v. Burns, 263 Mo. 595, 173 S.W. 1070; Sec. 4004, R. S. 1939; State v. Frazier, 98 S.W.2d 715, 339 Mo. 966; State v. Hefflin, 89 S.W.2d 947, 338 Mo. 236, 103 A. L. R. 1301.

OPINION

Cooley, C.

In the Circuit Court of Morgan County the defendant was convicted of grand larceny, sentenced to two years' imprisonment in the penitentiary and has appealed. In his brief here he assigns error in the admission in evidence of certain statements in the nature of confessions to the officers who had him in custody and questions the sufficiency of the evidence. The motion for new trial is not before us and we have no means of knowing what it contained or what complaints of error on the part of the court were therein preserved and presented to the court. The transcript of the record certified to us contains notations of record showing only that a motion for new trial was filed and that it was overruled before allocution and judgment, but the motion is not set out nor referred to in the bill of exceptions, nor are the instructions and the court's rulings thereon set out or referred to, except the peremptory instruction, in the nature of a demurrer to the evidence, offered by defendant at the close of the evidence, which was by the court overruled.

Defendant was charged by indictment, in one count, with burglary and larceny in that he feloniously and burglariously broke into and entered the barn of Ralph Imler, wherein "divers goods, hay, feed, oats and other property of Ralph Imler was stored and kept" and feloniously stole, took and carried away ten bushels of oats of the value of four dollars, the property of Ralph Imler, found in said barn. There may be a question whether the indictment sufficiently charges burglary, because it does not allege that the breaking and entering of the barn were done with intent to steal or commit a crime therein, unless the charge that the breaking and entering were done feloniously and burglariously in effect sufficiently charges the intent -- see State v. Taylor, 136 Mo. 66, 37 S.W. 907, State v. Gentry, 329 Mo. 282, 291, 44 S.W.2d 27 -- but since, in our opinion, the judgment must be reversed and the cause remanded for another reason we need not consider the question of the sufficiency of the indictment to charge burglary. It does sufficiently charge larceny. Whether the larceny committed, if any, was grand or petit larceny in the circumstances of this case will be discussed later.

The jury returned the following verdict:

"We, the jury, find the defendant guilty of grand larceny and assess his punishment to 2 years in the penitentiary.

"M. D. Marriott, Foreman."

The State's evidence tended to show the following: On a Saturday night in the latter part of May or early part of June, 1939, some person entered Ralph Imler's granary (so called in the evidence, though called barn in the indictment) and stole therefrom ten or twelve bushels of oats (according to Imler's estimate). Entrance appears to have been effected through a small window, the door being padlocked. Imler testified the window was held in place by being "temporarily tacked, a couple of little buttons just temporarily stuck in" and that it would have taken "mighty little" force to have got into the granary. That was all of the evidence on the issue of burglary, which may account for the jury's failure to find defendant guilty of that crime. As to the larceny the evidence was that the next morning (Sunday) the sheriff was called and he and his deputy went to Imler's place. They found indications of an automobile having stopped at the driveway leading into Imler's premises, and some scattered oats, as though spilled, at that point and between that point and the granary. They traced the tracks, which they described, of an automobile from that place to defendant's residence, and described the tires on defendant's automobile. Briefly, their testimony indicated that the tracks were such as would have been made by defendant's automobile. Some grains of oats were found on the running board of defendant's car.

Imler and defendant were brothers-in-law and Imler did not file complaint against defendant. Later the grand jury indicted him and he was arrested. The sheriff and his deputy testified that while defendant was in their custody and arrangements were being made for bond defendant admitted to them, after first denying it, that he had taken Imler's oats. There was no evidence as to the value of the oats alleged to have been stolen.

Defendant, testifying for himself, denied having stolen the oats, denied having made the admissions testified to by the officers, and explained his possession of oats found in his granary by saying he had bought them from a neighbor.

Without further detailing the evidence it is sufficient to say that in our opinion it made a case for the jury on the issue of larceny.

The verdict and judgment are parts of the record proper and must be examined by us, whether mentioned in the motion for new trial or not. [State v. Meadows, 331 Mo. 533, 55 S.W.2d 959.] The verdict finding defendant guilty of grand larceny and making no reference to burglary is tantamount to an acquittal on the burglary charge. [State v. Whitton, 68 Mo. 91, 95-6; State v. Hays, 78 Mo. 600, 609; State v. Patterson, 116 Mo. 505, 511, 22 S.W. 696; State v. Hays (Mo.), 252 S.W. 380 (burglary and larceny, finding of guilty of burglary, no finding as to larceny, held an acquittal on charge of larceny); State v. Meyer (Mo. App.), 221 S.W. 775; State v. McCue, 39 Mo. 112; State v. Socwell, 318 Mo. 742, 300 S.W. 680, 683 [5-6]; State v. Jett, 318 Mo. 672, 300 S.W. 752, 754 [2, 3].]

In the cases cited above on this point, except State v. Hays, 252 S.W. 380, there were two or more counts in the indictment or information and in each there was a verdict of guilty on one count, making no finding on the other count or counts, which was held equivalent to acquittal on such other count or counts. The fact that in the instant case there was but one count, charging burglary and larceny, can make no difference in the application of the principle. Though by statute, Sec. 4448, R. S. 1939, Mo. Stat. Ann., sec. 4056, p. 2854, burglary and larceny, when the larceny is committed in connection with the burglary, may be prosecuted in the same count or in separate counts of the same indictment, they are distinct offenses. [See State v. Meadows, supra.]

In State v. Jenkins (Mo.), 246 S.W. 911, the defendant was charged with burglary and larceny. This court in its opinion said the defendant "was found guilty of grand larceny only (not of burglary) and sentenced to the penitentiary for a term of two years." The court further said that "The State offered no evidence as to the value of the goods alleged to have been stolen" and that as there was no evidence of the value of the stolen goods the conviction could not stand. The judgment was reversed and the cause remanded. We have a similar situation in the case at bar except that in the Jenkins case the information charged the value of the stolen goods to be $ 800 while here the indictment charges that the value of the stolen oats was $ 4. In this case, as in the Jenkins case, there was no evidence of the value.

In State v. Enochs, 339 Mo. 953, 98 S.W.2d 685, the defendant was charged with burglary and larceny, the building alleged to have been broken into being a gasoline filling station and the property alleged to have been stolen being some prestone and cup grease and a wrecking bar, all of the total alleged value of $ 31.25. The jury found the defendant guilty of grand larceny but not guilty of burglary....