State v. Blockberger

• Decision Date: 19 February 1913
• Citation: 153 S.W. 1031
• Parties: STATE v. BLOCKBERGER.
• Court: Missouri Supreme Court

153 S.W. 1031

STATE v. BLOCKBERGER.

Supreme Court of Missouri, Division No. 2.

February 19, 1913.

1. INDICTMENT AND INFORMATION (§ 125) — JOINDER OF OFFENSES — STATUTES.

By express provision of Rev. St. 1909, § 4528, one, who, in committing burglary, also commits larceny, may be prosecuted for both offenses in the same count.

2. BURGLARY (§ 1) — DEGREE OF OFFENSE.

Larceny committed in the perpetration of a burglary is a felony, irrespective of the value of the thing stolen.

3. CRIMINAL LAW (§ 881) — VERDICT.

A verdict finding defendant guilty of burglary and larceny as charged, and assessing his punishment at imprisonment for two years for the burglary and for the additional term of two

years for the larceny, is a definite finding of guilt of both offenses, with cumulative punishment.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

Harry Blockberger was convicted, and appeals. Affirmed.

From a judgment of the circuit court of the city of St. Louis, sentencing defendant to imprisonment in the penitentiary for burglary in the second degree and grand larceny, he appeals to this court.

The information charged the defendant with burglary in the second degree and larceny in having, on the 20th day of May, 1911, entered the store, shop, or building of one Albert Stone with intent to steal personal property therein, and in then and there stealing, taking, and carrying away $30, lawful money of the United States.

The defendant was arraigned on the 26th day of June, 1911, in the circuit court of the city of St. Louis, and entered a plea of not guilty. On the succeeding day he was put upon his trial before a jury, which, after hearing the evidence and receiving the instructions of the court, found him guilty as charged, and assessed his punishment at imprisonment in the penitentiary for a term of two years for the burglary and for an additional term of two years for grand larceny. After ineffectual motions for a new trial and in arrest of judgment, he appealed to this court.

The evidence for the state disclosed: That during the month of May, 1911, Albert Stone was engaged in business as a confectioner at 2001 Park avenue, city of St. Louis. That at the time mentioned in the information there was in Stone's store building, in addition to the usual fixtures and merchandise incident to this character of business, a cash register, in which there was a number of bills in paper money and $30 in silver; the latter consisting of dollars, half dollars, quarters, dimes, and nickels. That about 12 o'clock on the night of the 19th day of May, 1911, Stone, the proprietor, before closing the store, counted the money on hand, put the bills in his pocket, and left the $30 in silver in the cash register, the drawer of which he closed. He then locked the store door and retired to his room, where he lodged, in the rear of the same building. Some time between 3 and 4 o'clock on the morning of May 20, 1911, a police officer named Omohundro had tried the door in passing, and found it locked. Later, at about 4:45 a. m., Edward Marshall, a newspaper carrier, saw the defendant, with a companion, sitting near the vestibule of Stone's store. James Moore, a motorman who came up about this time, and was waiting for a car to take him to his work, also saw the defendant at the same place, and the latter, just as Moore boarded the car, arose, entered the vestibule to the store, took something out of one of his pockets, and turned towards the door as if to unlock it. From the testimony of Marshall and Moore it is shown that they knew the defendant by sight, having seen him at different times in the neighborhood, and that his presence at Stone's store at that time in the morning attracted their particular attention. Moore, after boarding the car, proceeded several blocks, when, seeing the police officer named Omohundro, he hailed and notified him of the occurrence. The officer went at once to the store building, where he found the door unlocked and the drawer of the cash register open, disclosing that it was empty, except for a few pennies. In company with another officer named Shellhasse, Omohundro, after learning where the defendant roomed, went to his lodging place, arrested him at about 7:30 a. m., and took him to the station. They found on his person $14.15 in silver of the denominations of dollars, half dollars, quarters, dimes, and nickels, and a bunch of keys, one of which was tried by the officers on the door to Stone's store, and was found to lock and unlock the same. When asked by the officers, both at his room and after being taken to the station, when he had gone to his room, he said at 4:30 or 5 o'clock that morning, and when asked where he had been the night before he said he had been "out at a sporting house on Lucas avenue." On the witness stand...