State v. Bruffey
| Decision Date | 18 October 1881 |
| Citation | 11 Mo.App. 79 |
| Parties | STATE OF MISSOURI, Respondent, v. GEORGE BRUFFEY, Appellant. |
| Court | Missouri Court of Appeals |
Where an indictment charges burglary and larceny in one count, and the accused is convicted of the larceny and acquitted of the burglary; upon a new trial upon the same indictment he cannot be convicted of burglary.
APPEAL from the St. Louis Criminal Court, LAUGHLIN, J.
Affirmed as to larceny; reversed as to burglary.
F. D. TURNER, for the appellant.
JOSEPH R. HARRIS, for the respondent.
The defendant was indicted for burglary and larceny, both offences being charged in one count. Upon trial before a jury he was convicted of the larceny, but acquitted as to the burglary. His motion for a new trial was sustained, and at a subsequent term he was again tried on the same indictment and found guilty of both the burglary and the larceny. It is assigned for error that the defendant could not lawfully be convicted of burglary in the second trial, after his acquittal of that offence in the first.
Burglary and larceny are two distinct, separate, and independent offences. The statute (Rev. Stats., sect. 1301) permits a prosecution for both in the same count, or in separate counts of the same indictment, but nowhere intimates that the two may be regarded as one offence. On the contrary, provision is made in the same section for a separate assessment of punishment for each of the two crimes. In The State v. Alexander (56 Mo. 131), the defendant was convicted of burglary and larceny in one proceeding. The supreme court affirmed the judgment as to the larceny, and reversed it as to the burglary.
If there had been two indictments, one for each of the crimes charged, and two separate trials, it will hardly be questioned that the granting of a new trial in one case would not reopen a verdict of acquittal in the other. Such an acquittal would be a perpetual bar, under Article II., section 23, of our state constitution: “Nor shall any person, after being once acquitted by a jury, be again, for the same offence, put in jeopardy of life or liberty.” We are unable to see how the General Assembly can, by a statute regulating criminal procedures, deprive any citizen of a constitutional right. No such effect was intended, and none can follow from a law which simply provides for the trial of two offences charged under one indictment. The prosecution for burglary in this case, was ended forever by the...
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State v. Gannon
...for the appellant, cited: The State v. Kattlemann, 35 Mo. 105; The State v. Cofer, 68 Mo. 120; The State v. Simms, 71 Mo. 540; The State v. Bruffey, 11 Mo.App. 79; The State v. Craft, 72 Mo. 456. J. R. HARRIS, for the respondent: By consenting to a new trial, the defendant waived his consti......
- McGinnis v. State
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State v. Kennedy
...that they must aquit the defendant of the burglary. Following the precedent of The State v. Alexander (56 Mo. 131), and The State v. Bruffey (11 Mo. App. 79), we therefore reverse the judgment as to the burglary and affirm it as to the larceny. It is so ordered. All the judges ...