State v. Butterfield
| Decision Date | 30 April 1882 |
| Citation | 75 Mo. 297 |
| Parties | THE STATE v. BUTTERFIELD et al., Plaintiffs in Error. |
| Court | Missouri Supreme Court |
Error to Saline Criminal Court.--HON. JOHN E. RYLAND, Judge.
AFFIRMED.
Boyd & Sebree for plaintiffs in error.
D. H. McIntyre, Attorney General, for the State.
The defendants were indicted in the criminal court of Saline county, for burglary and larceny in the same count of an indictment. The indictment charges that defendants “feloniously and burglariously broke into and entered the dwelling house of one W. P. Walton, in which there was at the time a human being, by forcibly bursting and breaking the window of said dwelling house, with intent then and there feloniously and burglariously to steal, take and carry away certain goods and chattels, then and there being in said dwelling house; and one overcoat, of the property of John Holland, of the value of $20, and one overcoat of the value of $30 and one basket of provisions of the value of $5, of the property of W. P. Walton, in said dwelling house then and there being found, did feloniously and burglariously take, steal and carry away, against the peace and dignity of the State.”
The evidence given at the trial tends to show that on the night of the 5th of March, 1881, the dwelling house mentioned in the indictment was broken into and entered by some parties, by forcibly bursting and breaking the rear window of said dwelling; that a plank had been nailed on said window, which also had inside fastenings. On the morning of the 6th this plank was found to have been taken off and the window broken open. It further appeared that said dwelling house, at the time, was owned and occupied by said Walton as a hotel, also, which was called the “City Hotel.” The evidence also tends to show that the two overcoats and basket of provisions, mentioned in said indictment, were, on the night in question, in the office of said hotel or dwelling house; and that, on the morning of the 6th, they had disappeared therefrom, and could not be found anywhere, in or about the same; and that the rear window of said hotel had been burst and broken open, as aforesaid. The evidence also tends to show that said overcoats were of the value of $30. It appears also that, on the night of the burglary and larceny in question, the defendants were seen together in Brownsville, on several occasions and at several places. They were first seen, by the city marshal, about nine or ten o'clock that night. Then they were next seen by him in the saloon in Central Hotel, on Main street; and after that they were seen about twenty minutes after twelve o'clock that night on the corner of Miller and Main streets, about 100 yards from the City Hotel, and going toward said hotel and toward the road to Lexington. Afterward, on the morning of the 7th of March, 1881, the defendants made their appearance at one of the hotels in Lexington, about thirty-five miles from Brownsville. They came together and took breakfast at the hotel in question. Butterfield had the two overcoats in question and left them in the hotel office. He, Butterfield, claimed both coats, and left one of them as security for their bill. On that afternoon, about two or three o'clock, the city marshal of Lexington arrested both the defendants at a house of prostitution in that city, and asked them where their overcoats were. They said they had none. The marshal then asked one of the women in the house for defendants' overcoats, and she gave him one of the coats. The marshal asked Butterfield whose coat that was. He said it was his. The marshal then took the defendants and went to the hotel and got the other coat. Butterfield told the Lexington marshal that he did not go into the Walton Hotel. He said he left Brownsville, and Moore caught up with him, and had the overcoats. As they were going into the Lexington hotel office, the marshal saw Butterfield drop a pair of gloves. He picked them up and asked Butterfield why he dropped the gloves. He replied that he did not want to be caught with them. The marshal afterward gave the gloves to Walton, who claimed them in the presence of the defendants. On the 7th or 8th of March, 1881, John DeLong, the city marshal of Brownsville, went to Lexington after the defendants, and brought them back to Brownsville. While in the custody of DeLong the defendants said they were “Butterfield and Moore.” Butterfield said Macon Moore overtook him between Brownsville and Concordia, with the coats. Moore said they did not walk very fast between Brownsville and Concordia, because Butterfield had a sore heel. Butterfield said Moore brought the coats to him. These overcoats were fully identified as the property of Holland and Walton, and as the same overcoats that were in the City Hotel at Brownsville on the night of the burglary and larceny, and that disappeared therefrom on that occasion. The defendants would not tell where they got the overcoats, except as above. The Brownsville city marshal asked them where they got the coats, and they replied, they did not do business that way. They did not want to talk much.
It also appears, that in the progress of the trial, the State introduced as a witness W. M. Todd, who testified that he was yard-master of the State penitentiary at Jefferson City. The State then asked the witness the following questions: 1st. “Have you ever seen the defendants?” The defendants objected to the question; but their objection was overruled by the court, and the witness answered: “Yes, I have seen them.” 2nd. “What are their names?” The defendants objected to this question also, but the court overruled the objection, and the witness answered: “Their names are Mathew C. Williams and Cornelius Drums.” 3rd. “How do you know?” This question was also objected to, the objection overruled, and the witness answered: “Because I have seen them before.” 4th. ““Where did you see them?” This question was also objected to by the defendants, and the court sustained the objection; but the witness, before he was stopped, said that he had seen them as convicts, in the Missouri penitentiary; that he had turned defendant Butterfield out on the 14th of February last, and the defendant Moore on the 1st of March, 1881. The defendants duly excepted to these adverse rulings of the court, and also to the answer of the witness; and especially to the answer to the last question, which the witness proceeded to give notwithstanding his objection was sustained by the court. This was all the testimony.
The court, at the instance of the State, gave the following instructions, over the objections of the defendants, to-wit:
1. If the jury believe from the evidence that the defendants, at any time within three years prior to the finding of the indictment in this case, to-wit: March 28th, 1881, at the county of Saline, State of Missouri, broke and entered the said dwelling house of William P. Walton, by forcibly breaking and bursting the window, in which there was at the time a human being, with the intent of stealing and carrying away any goods, wares, merchandise or other property then being in said dwelling house, then they will find the defendants guilty of burglary in the first degree, and assess their punishment at imprisonment in the State penitentiary for a term of years not less than ten. The breaking of the window by pulling off the plank and undoing the fastening is a forcible bursting and breaking within the meaning of the statute.
2. If the jury believe from the evidence that in committing the burglary the defendants also took and appropriated to their own use any of the property as described in the indictment and testified to by the witnesses, then the jury will find the defendants guilty of grand larceny, and in addition to the punishmont for burglary, they will assess their punishment at imprisonment in the penitentiary for a term of years not less than two nor more than seven.
3. The court instructs the jury that the recent possession of stolen property, unless satisfactorily explained, is prima facie evidence of guilt.
4. If the jury have a reasonable doubt of the defendants' guilt, they should acquit; but such a doubt, to authorize an acquittal, should be a real and substantial doubt touching their guilt under all of the evidence, facts and circumstances detailed in evidence, and not a mere possibility of their innocence.
5. Although the jury may believe from the evidence that only one of the defendants, Macon Moore, actually broke and entered the house, yet if they further believe that the other defendant was present and in any manner was aiding, assisting, advising, procuring, counseling or abetting in said breaking and entering, then said other defendant is equally guilty as though he had actually broken and entered the house.
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