State v. Cain

• Decision Date: 07 October 1930
• Docket Number: No. 21297.,21297.
• Citation: 31 S.W.2d 559
• Parties: STATE v. CAIN.
• Court: Missouri Court of Appeals

31 S.W.2d 559

STATE v. CAIN.

No. 21297.

St. Louis Court of Appeals. Missouri.

October 7, 1930.

Appeal from Circuit Court, Washington County; E. M. Dearing, Judge.

"Not to be officially published."

Grover Cain was convicted of petit larceny, and he appealed to the Supreme Court, which ordered the cause to be transferred to the Court of Appeals.

Affirmed.

Richeson & Richeson, of Potosi, for appellant.

Edward T. Eversole, Pros. Atty., of St. Louis, R. E. Kleinschmidt, of Hillsboro, and Durham & Sparling, of St. Louis, for respondent.

BENNICK, C.

Charged with burglary and larceny in an information filed July 25, 1928, by the prosecuting attorney of Washington county, the defendant was brought to trial, and convicted of petit larceny; his punishment being assessed at a fine of $100. From the judgment of conviction, he appealed to the Supreme Court; and that court, finding that it had no jurisdiction, on March 14, 1930, ordered that the cause be transferred here.

Defendant and the prosecuting witness, Clarence Harness, are both farmers, residing in the same general vicinity in Washington county. The evidence for the state disclosed that Harness was the owner of eleven bushels of shelled corn, of the variety known as "Bloody Butcher Mixed," which he had stored in his crib. Defendant was aware of the location of the corn, for the testimony showed that a short time before the theft, he had been on and about the premises, had observed the corn, and had stated to Harness that "somebody will carry this corn off for you."

On the evening of April 12, 1928, Harness securely fastened the door to the crib, but when he again entered the crib about 4 o'clock in the afternoon of the following day, he found that seven bushels of the corn were missing. Upon inspection, footprints were discovered about the premises, as well as automobile tracks on the highway a short distance from the crib, which tracks disclosed that a car had been turned around at that point, and then driven to defendant's home to the north. The tracks were identified as having been made by Firestone tires, and it was a significant fact that defendant's automobile was equipped with tires of that make.

On the following day, April 14, 1928, a search warrant was obtained, and upon its execution, three sacks, containing approximately seven bushels of corn, were found in a room in defendant's house, which Harness identified as his property, both by the corn itself, and by the manner in which he had stitched and tied one of the sacks. The corn was thereupon seized by the officers, and defendant placed under arrest, and at the trial the corn was again identified, not only by Harness himself, but also by a witness who had helped him shell it.

The defense consisted of a denial that the corn found on defendant's premises had been stolen, the testimony of defendant being that he had shelled the same two weeks prior to the date of the search, and had placed the sacks in his dining room to protect the corn from rats and mice, in all of which he was corroborated by his wife and three other witnesses.

The corn was shown to have been worth $3 a bushel, making the value of the corn found on defendant's premises the sum of $21.

When the case came on for trial, and before the commencement thereof, the prosecuting attorney sought and obtained leave from the court to amend the information by striking out the words, "personal property," as used to describe the things alleged to have been stolen, and to substitute therefor the words, "goods, wares, and merchandise, and other valuable things"; the evident purpose being to make the information conform more nearly to the language of the statute (section 3297, as re-enacted by Laws 1921, p. 196), defining the offense of burglary in the second degree. Defendant now assigns the allowance of such amendment as error, but we do not think that his claim is well-founded.

Section 3853, Rev. St. 1919, provides that an information may be amended in matter of form or substance at any time by leave of court before the trial, and on the trial as to all matters of form and variance, at the discretion of the court, when the same can be done without prejudice to the substantial rights of the defendant on the merits. Generally speaking, and except as limited by statute, the right to amend an information is as broad as the right to amend pleadings in civil cases. State v. Hall, 312 Mo. 425, 279 S. W. 102; State v. Dixon (Mo. Sup.) 253 S. W. 746. In this instance, irrespective of when the amendment was allowed, though it does appear that it was made before the jury was sworn, the change was but a formal one, not going to the substance of the charge, and not prejudicial to the substantial rights of the defendant on the merits. Both before and after the amendment, the property was specifically described in the information as "fifty-four gallons of seed corn," so that defendant was at all times fully apprised of the exact charge which he was called upon to answer. Consequently, in permitting the amendment, the discretion of the court was not abused, and counsel's insistence to the contrary must be disallowed.

The next claim of error is founded upon the assumption that a motion to suppress the evidence, filed by defendant before the trial, should have been sustained. The search warrant, following the form prescribed by section 4116, Rev. St. 1919, directed that entry be made on the premises of defendant in the daytime. In the motion to suppress, it was alleged that contrary to the provisions of the statute and the warrant itself, the officers had searched defendant's premises in the nighttime, and that the corn found on the premises had therefore been unlawfully seized, and was incompetent to be used as evidence against defendant, in that the search warrant had been illegally executed.

The term "daytime" is defined in 17 C. J. 1134, 1135, where the leading cases are collated, as "the time from the rising to the setting of the sun, and that portion of the time after the setting of the sum, or before its rising, during which there is sufficient natural light, other than moonlight, so that the countenance of a man may be distinguished." The evidence taken on the motion to suppress disclosed that the search warrant was executed about 6:30 o'clock in the evening, the date being the 14th of April; that it was not dark, though after sundown; and that a man's features could be observed without the use of an artificial light. In view of this testimony, the court was warranted in finding that the warrant had been executed in the daytime; and the motion to suppress was therefore properly overruled.

The next assignment of error is that the court should have quashed the information, the contention of counsel being that the same was fatally defective for failing to have alleged that the premises charged to have been burglarized were occupied by or in the possession of the person whose property was stolen. Regardless of the propriety of the construction which counsel have thus put upon the information, it must be borne in mind that defendant was not convicted of burglary, but of larceny, which latter offense does not require as one of its constitutive...