State v. Dooly

• Decision Date: 31 October 1876
• Parties: STATE OF MISSOURI, Defendant in Error, v. HENRY W. DOOLY, Plaintiff in Error.
• Court: Missouri Supreme Court

64 Mo. 146

STATE OF MISSOURI, Defendant in Error,

v.HENRY W. DOOLY, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to Howard Circuit Court.

J. B. Clark & Son, with Jas. H. Robinson, for Plaintiff in Error, cited: State vs. Henly, 30 Mo. 509; Wagn. Stat. pp. 454, 455, §§ 10-17; Bish. Crim. Law 5 Ed. Vol. 2, §§ 90, 92, 99; Kell. Crim. L. & P., § 559; State vs. Jones, 61 Mo. 232; Wagn. Stat. 513, § 9; 455, § 19; 1108, § 4; Kell. Prac. § 421.

J. L. Smith, Att'y Gen'l, for Defendant in Error, cited: State vs. Henly, 30 Mo. 509; Hale, 560; 2 East P. C. Ch. 15, § 15, 514; Rex vs. Furinal, Bush, Ky. 445; 2 Arch. Cr. Pl. & Pr., p. 329; Bish. Crim. Law, 5 Ed. Vol. 2, § 116; Jones vs. State, 11 N. H. 270; Com. vs. Brown, 3 Rawle, 207; State vs. Ayer, 3 Frost, 301; Rosc. Crim. Ev. (4 Am. Ed.) 364, 366; In re Tweed, 60 N. Y., 445, and authorities there cited.

HENRY, Judge, delivered the opinion of the court.

At the December term 1875 of the Circuit court of Howard County, the grand jury returned the following indictment against Henry Dooley:

“The grand jury for the State of Missouri for the body of the county of Howard, charged and sworn, upon their oath present, that Henry Dooley, William Todd and William Ogg, all late of the county of Howard aforesaid, on the twenty-fourth day of June, 1875, feloniously, burglariously and forcibly, at the county aforesaid, did break into and enter a certain smoke house and building, the property of Andrew C. Tolson, then and there being, by breaking down the door of said smoke house and building, in which said smoke house and building there were then and there at the time aforesaid, goods, wares and merchandise, and other valuable things kept and deposited; that the said Henry Dooley, William Todd and William Ogg, so broke and entered into said smoke house and building, with the intent then and there to commit a larceny by then and there stealing, taking, and carrying away the goods, chattels and personal property of the said Andrew C. Tolson in said smoke house and building kept and deposited; to-wit, ten pieces of bacon of the value of thirty dollars then and there being found in said smoke house and building.

They, the said Henry Dooley, William Todd, and William Ogg, did then and there, burglariously and feloniously steal, take and carry away, contrary” etc.

At the April term of said court A. D. 1876, there was a trial of said cause which resulted in the conviction of defendant, Dooley, of both burglary and larceny; of burglary in the second degree, the jury assessing his punishment at imprisonment in the penitentiary for a term of three years, and of larceny, the jury assessing his punishment at like imprisonment for a term of two years.

In due time he filed his motion for a new trial, which was overruled, and thereupon he filed a motion in arrest of judgment, which was also by the court overruled. As neither the evidence nor the instructions given by the court are preserved, the points made by defendant, on his motion for a new trial, will not be considered. The motion in arrest presents the following questions viz: Is the indictment sufficient to charge the crime of burglary, and larceny, or either? Are the judgment and sentence warranted by the verdict? Does the record fail to show that defendant Dooley was personally present in court, when the jury returned their verdict into court, and if so, is it an error for which the judgment should be reversed?

It will be observed that the first paragraph of the indictment copied above exactly as it appears on the record, charges the breaking and entering into the smoke house by the defendant. The second paragraph contains the allegation of the intent with which it was done.

It is not alleged therein that defendant stole the ten pieces of bacon. There is no more stated in the first two paragraphs, than that the defendant feloniously and burglariously broke and entered into the...