State v. Creely
| Decision Date | 01 December 1920 |
| Docket Number | No. 22195.,22195. |
| Citation | 225 S.W. 1012 |
| Parties | STATE v. CREELY |
| Court | Missouri Supreme Court |
Appeal from Criminal Court, Saline County; John A. Rich, Judge.
Dave Creely was convicted of burglary in the second degree, and he appeals. Reversed and remanded.
J. H. Whitecotton, of Moberly, and R. M. Reynolds, of Marshall, for appellant.
Frank W. McAllister, Atty. Gen. (Don C. Carter, of Sturgeon, of counsel), for the State.
The defendant, Dave Creely, was convicted of the crime of burglary in the second degree, and sentenced to imprisonment in the penitentiary for 15 years. He has duly appealed.
The facts in this case are identical in all essential particulars with the facts in State v. Tracy, 225 S. W. 1009, this day decided, except that this defendant was arrested in St. Louis, Mo., on the Friday following the night upon which the crime was committed. He also relied upon an alibi as a defense.
Appellant alleges that the evidence in this case was insufficient to support the verdict. For the reasons stated, and upon the authorities cited, in the first paragraph of our opinion in State v. Tracy, supra, this contention must be sustained.
Appellant's learned counsel complain of the action of the trial court in giving instructions "2, 4, 5, 6, and 8." Excepting the last two, no instructions so numbered appear either in the bill of exceptions or in the abstract of the record. Instructions numbered 6 and 8 are the usual instructions with reference to burglary and burglarious breaking. Counsel for appellant correctly say that there was no evidence to support either.
Appellant assigns error in the admission of evidence of certain statements made by appellant after his arrest to the effect that he was just back from Kansas City. We have read the record, and conclude that these statements were entirely voluntary. Furthermore, this evidence was received without objection, and the matter is not before us for review. Should there be another trial of this cause, the venue of the crime and the ownership of the building in question will doubtless be proven more clearly and definitely.
Other matters upon which complaint is made are not likely to recur upon another trial of this cause. As in the Tracy Case, supra, a companion case to the one at bar, we think a further investigation of the facts revealed by this record may further the ends of justice.
For the reasons stated, this case should be reversed and remanded. It is so ordered.
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