State v. Barker

• Decision Date: 31 October 1876
• Citation: 64 Mo. 282
• Parties: STATE OF MISSOURI, Respondent, v. GEO. W. BARKER, Appellant.
• Court: Missouri Supreme Court

64 Mo. 282

STATE OF MISSOURI, Respondent,

v.GEO. W. BARKER, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Clinton County Circuit Court.

J. F. Harwood and Charles Ingles, for Appellant, cited: State vs. Henley, 30 Mo. 509, close of opinion:

J. L. Smith, Att'y Genl., for Respondent, cited: Kell. Crim. L., p. 309, § 573; State vs. Smith, 16 Mo. 550; State vs. Watson, 31 Mo. 360, and contended that State vs. Henley was not an authority for appellant.

HENRY, Judge, delivered the opinion of the court.

At the April term, 1876, of the Clinton circuit court, defendant and one Kennedy were jointly indicted for burglary in the second degree, and grand larceny. The indictment contained but one count and is in the usual form, and the larceny charged is the stealing of goods, wares and merchandise, specifically described, of the value of fifty dollars, and the property of R. C. Stevens and Thomas K. Smith, into whose store house, it is alleged, defendant burglariously and feloniously broke and entered.

At the same terms, there was a trial of the cause, which resulted in the acquittal of Kennedy and a verdict of guilty of grand larceny against defendant, which fixed his punishment at imprisonment in the penitentiary for two years.

Defendant, in due time, filed his motion for a new trial, which was overruled, and thereupon his motion in arrest, which was by the court also overruled, and judgment was entered against defendant in conformity with the verdict, and from that judgment he has appealed to this court.

The points insisted upon by defendant for a reversal are, 1st. That the court erred in giving for the State the third instruction, which told the jury that defendant could be convicted of larceny, although they might not find him guilty of burglary;

2nd. That the verdict virtually acquits Barker of the burglary, but finds him guilty of grand larceny, when the evidence shows the property found in his possession to have been worth only two dollars;

3rd. That the indictment alleged that the stolen goods were the property of R. C. Stephens and Thomas K. Smith, and the proof was that they were the property of Clifford J. Stephens and Thomas K. Smith.

As to the first point § 19 (Wagn. Stat. p. 456) provides that “if any person in committing burglary, shall also commit a larceny, he may be prosecuted for both offenses in the same count, or separate count of the same indictment, and, on conviction of such burglary and larceny, shall be punished by imprisonment in the penitentiary, in addition to the punishment hereinbefore prescribed for the burglary, not less than two nor exceeding five years.”

It will be observed that when one in committing a burglary, also commits a larceny, he is punishable for the larceny, without regard to the value of the property stolen, to the same extent as for grand larceny; whereas, if he had stolen the property and not at the same time committed a burglary--if the property stolen were of less value than five dollars--his offense would have been only a misdemeanor.

While a person may be indicted and charged with both burglary and larceny in one count, if acquitted of burglary and found guilty of larceny, it will still be petit or grand larceny, according to the value of the property stolen.

In the State vs. Alexander (56 Mo. 131), it was held by this court, that on such an indictment, the accused might be acquitted of the burglary...