State v. Burdett

• Decision Date: 07 November 1898
• Citation: 145 Mo. 674,47 S.W. 796
• Parties: STATE v. BURDETT.
• Court: Missouri Supreme Court

47 S.W. 796

145 Mo. 674

STATE v. BURDETT.

Supreme Court of Missouri, Division No. 2.

November 7, 1898.

CRIMINAL LAW — APPEAL — RECORD — REVIEW — INDICTMENT — VENUE — BURGLARY.

1. A motion for a new trial is not a part of the record proper, and is available only when made part of the bill of exceptions.

2. Rulings of the circuit court will be reviewed only after having been brought to its attention by motion for a new trial.

3. An indictment that at the county of Christian, in the state of Missouri, defendant burglariously entered a building "there situate," sufficiently describes the place of the offense.

4. An indictment that accused feloniously and burglariously entered the building of a certain person, which was situate within the curtilage of such person's dwelling, but did not form a part thereof, sufficiently charges that the building within which the burglary was committed was within the curtilage of the owner's dwelling, within Rev. St. 1889, § 3526, defining burglary in the second degree as the breaking and entering into a building within the curtilage of a dwelling, but not forming a part thereof.

5. Where a taking of goods, as well as a burglarious entry, is charged, accused may be convicted of burglary without being also convicted of larceny.

Appeal from circuit court, Christian county; Argus Cox, Special Judge.

C. M. Burdett was convicted of burglary in the second degree, and he appeals. Affirmed.

Francis M. Wolfe, O. E. Gorman, and John Schmook, Jr., for appellant. Edward C. Crow, Atty. Gen., Sam. B. Jeffries, Asst. Atty. Gen., and W. W. Graves, for the State.

GANTT, P. J.

At the February adjourned term of the circuit court of Christian county, for the year 1897, the following indictment was duly preferred against the defendant, C. M. Burdett: "The grand jurors of the state of Missouri, impaneled, sworn, and charged to inquire within and for the body of Christian county, upon their oath present that C. M. Burdett, late of the county and state aforesaid, on the 27th day of March, A. D. 1897, at the county of Christian and state of Missouri, did then and there unlawfully, feloniously, and burglariously, with the assistance and aid of one or more confederates, then actually present, aiding, and assisting, break into and enter the smoke house of one W. E. Thrower, by then and there, feloniously and burglariously, forcibly bursting and raising the latch of the outside door of the said smoke house there situate, the said smoke house being a building within the curtilage of the dwelling house of the said W. E. Thrower, in which dwelling house then and there resided the said W. E. Thrower and family, and the said smoke house not being or forming a part thereof, the said dwelling house, in which said smoke house there was then and there kept divers of goods and chattels, and with the intent then and there feloniously and burglariously to steal, take, and carry away six middling pieces of hog-meat, of the value of twenty dollars, of the personal property of the said W. E. Thrower and one J. W. Morris, then and there in the said smoke house being found, and did then and there, feloniously and burglariously, break into and enter the said smoke house in the manner aforesaid described, and then and there feloniously and burglariously steal, take, and carry away the said six middling pieces of hog meat, of the property and value as aforesaid described, against the peace and dignity of the state." The defendant demurred to this indictment, and, his demurrer having been overruled, he was duly arraigned, and entered his plea of not guilty. Upon a trial he was found guilty of burglary in the second degree, and sentenced to three years' imprisonment in the penitentiary. From that sentence this appeal is prosecuted.

1. At the threshold of our investigation of the...