State v. Clark

• Decision Date: 21 June 1886
• Citation: 89 Mo. 423
• Court: Missouri Supreme Court
• Parties: STATE v. CLARK.

89 Mo. 423

STATE

v.CLARK.

Supreme Court of Missouri.

June 21, 1886.

Appeal from Cooper circuit court.

Indictment and conviction for the larceny of a keg of beer from a dwelling-house.The Attorney General, for the State. Draffew & Williams, for appellant, John Clark.

RAY, J.

At the November term, 1885, of the circuit court of Cooper county, the defendant, John Clark, and one Straub Young were jointly indicted for “larceny committed in a dwelling-house” in said county. The indictment was framed upon section 1309, Revision 1879, which provides that “if any larceny be committed in a dwellihg-house, or in any boat or vessel, or in any railroad car, or by stealing from the person in the night-time, the offender may be punished by imprisonment in the penitentiary not exceeding seven years.” The indictment (omitting its formal parts) charges that at, etc., on, etc., one Straub Young and one John Clark, then and there, in a dwelling-house, (to-wit, the dwelling-house of a person to the grand jurors unknown,) feloniously did steal, take, and carry away a certain keg of beer, the property of one August Dengolesky, then and there in said dwelling-house being, against the peace and dignity of the state.

Upon a trial of the cause before a jury, at the same term, the following, in substance, was the evidence in the case: “That on the twenty-eighth day of August, 1885, one Straub Young and John Clark did take from an ice-house one keg of beer; that said beer belonged to one August Dengolesky, and the house was the property of William Dengolesky, and was situated in the city of Boonville; the defendants took the beer from the house in the day-time, and the beer was worth three dollars and sixty-five cents; that the said ice-house was made of brick, and under the ground, and that it was built originally for an ice-house, but afterwards a floor was put in, leaving the part below as an ice-house, and making four rooms above, without any internal communication between the rooms above and the ice-house below; that there was but one way of ingress and egress to the said ice-house, which was by a door upon the outside; that the occupants of the rooms above neither owned, nor had any control over, the ice-house and beer-cellar below; that said ice-house and beer-cellar, and the dwellings over it, were the property of and owned by William Dengolesky; and that a part of the ice-house was leased by him to one August Dengolesky, as and for a beer-cellar; and that two of the rooms over the ice-house were leased by him to one of the defendants, Straub Young, who occupied the same with his family as his dwelling-house at the time of the larceny charged in the indictment, and the remaining two rooms were leased by him to one Florence Jackson, who lived in the same at the time; that the only entrance to the said ice-house and beer-cellar was from the outside of the same, and that there was no door or opening of any kind between the ice-house and beer-cellar, and the rooms above occupied by the defendant Young and Florence Jackson, and that a floor separated the same; that said ice-house and beer-cellar, which are one and the same, were in the possession and under the control of one William Dengolesky, the owner thereof, and the said August Dengolesky, the lessee of a part thereof, and that neither of them had any control or resided in the rooms over and above said ice-house and cellar.”

At the close of the testimony the court, over the objections and exceptions of defendant, gave the following instruction for the state: “ Third. If the jury shall find from the evidence that the witness Dengolesky kept his beer in the basement of a house; and that said basement was also used as an ice-house; and that the superstructure over said basement was composed of four rooms; and that two families were living in those rooms; and that each family occupied different rooms; and that the only means of entering the basement where said beer was kept was by a cellar door on the outside,--then the jury are instructed that said basement was a portion of a dwelling-house, and if the defendants took the beer mentioned in evidence from said basement, then they took it from a dwelling-house, within the meaning of the law.”

The court then refused the following instruction asked by defendants, to which defendants excepted: “ First. The jury are instructed that the defendants are indicted for larceny committed in a dwelling-house; and they are further instructed that if they find from the evidence that Straub Young, one of the defendants, was dwelling in and residing with his family in a portion of the house referred to in the indictment; and that the keg of beer mentioned in said indictment was in an ice-house which formed a part of, or was connected with, the dwelling-house in which Young was living with his family; and that said ice-house, at the time it is charged said beer was taken, was under the control of William Dengolesky; and that there was no door or internal communication between the part in which Young was living and the ice-house,--then the jury cannot find the defendants guilty of the offense charged in the indictment.”

Upon the trial, as shown by the record, the defendant Straub Young was acquitted by the jury; but the defendant John Clark was found guilty as charged in the indictment, and his punishment assessed at imprisonment in the penitentiary for three years and four months, and, failing to secure a stay of execution, he is now in the penitentiary, as appears by the brief of the attorney general for the state.

It may be well to premise that by section 1307, Revision 1879, it is provided that “every person who shall be convicted of feloniously stealing, taking, and carrying away any money, goods, rights in action, or other personal property or valuable thing whatever, of the value of thirty dollars or more, or any horse, mare, gelding, colt, filly, ass, mule, or neat cattle, belonging to another, shall be deemed guilty of grand larceny. * * *” By section 1308 persons convicted of grand larceny...