State v. Burr

• Decision Date: 31 October 1883
• Citation: 81 Mo. 108
• Parties: THE STATE v. BURR, Appellant.
• Court: Missouri Supreme Court

81 Mo. 108

THE STATE

v.BURR, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Barton Circuit Court.--HON. J. D. PARKINSON, Judge.

AFFIRMED.

Morgan & Buler for appellant.

The information states no cause of action. It does not allege that defendant entered the inclosure without leave of the owner thereof, and that is the very essence of the offense. The terms willfully and maliciously used in the information, apply to a different clause and different offense, and cannot be construed to supply by implication the allegation left out of this information. Moreover, watermelons are not included in the act. The various kinds of plants, bushes and vines intended to be protected, are specifically mentioned, and watermelons are not named. The rule is, where general words follow particular ones, to construe the former as applicable to the things or persons particularly mentioned. St. Louis v. Laughlin, 49 Mo. 559. The only instruction given by the court is erroneous. It was calculated to prejudice the jury by leading them to believe that the offense was of so serious a nature that on conviction it might be punishable by imprisonment in the county jail for one year, whereas, under the then existing law, three months was the maximum. Wag. Stat., p. 464, § 65.

D. H. McIntyre, Attorney General, for the State.

The information charged the offense in the language of the statute (Wag. Stat., p. 464, § 65), creating it, and is sufficient. It was exhibited by the prosecuting attorney, who was the proper officer. Laws 1877, p. 355, § 6. And the justice had jurisdiction. Laws 1877, p. 281, § 1. The instruction given erroneously declared the penalty affixed to the commission of the offense, but inasmuch as the jury assessed a fine of $5, the very minimum prescribed by the law in force when the offense was committed, it is clearly not an error of which defendant can be heard to complain.

EWING, C.

This was a proceeding by information, before a justice of the peace, under section 65, 1 Wagner's Statutes, p. 464. The information charges that the defendant did willfully, maliciously, and unlawfully enter the inclosure of R. D. Chappell, without leave so to do, and did then and there pick, pull off, destroy and carry away a large lot of watermelons, the fruit of certain cultivated vines. A fine of five dollars was assessed against the defendant by a jury in the justice's court; and again on a new trial in the circuit court, a jury found him guilty, and assessed his punishment at a similar fine.

I. At the trial in the circuit court, defendant objected to the introduction of any evidence, on the ground that the information did not state facts sufficient to show that any offense had been committed. Upon this question, it is sufficient to say, that the information followed the language of the statute in describing the offense, which is all that is necessary. State v. James, 63...