State v. Hammons
| Decision Date | 15 March 1910 |
| Citation | 126 S.W. 422,226 Mo. 604 |
| Parties | STATE v. HAMMONS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Douglas County; John T. Moore, Judge.
Lome Hammons was convicted of burglary, and he appeals. Reversed.
G. W. Thornberry and A. H. Buchanan, for appellant. E. W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.
On the 25th of September, 1908, the prosecuting attorney of Douglas county began this prosecution by information charging the defendant with burglary and larceny in having broken into, in the night-time, and stolen from, the storehouse belonging to the estate of J. W. Johnson, deceased, located in the town of Gardner, in Douglas county, on the night of the 10th of August, 1908, and took therefrom about $10 lawful money of the United States belonging to the post office at Gardner, and between $5 or $10 in money and some other personal property belonging to the estate of J. W. Johnson, deceased. The defendant was arrested and on the 31st of March, 1909, filed his motion to quash said information on the ground that same did not state any offense against the laws of the state of Missouri, nor designate the ownership of the building alleged to have been burglarized, nor the goods and wares taken therefrom, nor who was the owner of or in possession of said storehouse, or the said goods and wares, and because the information did not advise the defendant of the nature and cause of the accusation against him. This motion to quash was overruled, and the defendant duly excepted at the time. Thereafter he entered his plea of not guilty, and at the same term of court was put upon his trial for burglary and larceny and convicted of burglary alone, and his punishment assessed at three years in the penitentiary.
It appears from the evidence that the storehouse and post office building in which the alleged burglary was committed had formerly belonged to a man by the name of J. W. Johnson, who had died November 25, 1907, and that the burglary occurred on the night of August 10, 1908. The post office at Gardner was kept in this store building. There were a number of articles, including a lot of shoes, some razors, pocketknives, cloth, and $25 or $30 in money, the latter consisting largely of quarters, dimes, nickles, and pennies, stolen and taken away. Defendant was at the store the day before the burglary and traded two chickens for some soap, soda, tobacco, and cartridges. He lived about four miles from the store. On this occasion Miss Oma Johnson, a daughter of the deceased merchant, waited on him, and they agreed entirely as to the character of his purchases, except she did not remember that he bought a nickle's worth of cartridges No. 38; but on the preliminary trial she testified that she would not swear that he did not buy the cartridges. Defendant had traded at this store for four or five years and always paid his bills there, as well as at other stores in the neighborhood. In payment for his purchases on this occasion, he tendered Miss Johnson a $10 bill, and she gave him back change to the amount of $9.80 after crediting him with the value of his two chickens. It seems that on Thursday after this burglary on Monday night, one Henry Strong, who had been called in by the constable to assist in searching for the stolen goods, found a piece of cloth, which was identified as a part of the stock of the Johnson store, in an open woods, some 250 to 400 yards distant from the defendant's house and on land owned by the grandfather of the defendant. The land on which the cloth was found was not in the possession of the defendant and was not inclosed, but lay along the public highway. Having found this piece of cloth, the constable obtained a search warrant and searched the defendant's house on Thursday morning after the burglary on Monday night. No property of any kind was found hidden or smuggled about the premises or answering to the description of the stolen goods. The searching officer found some money in a cloth sack or poke consisting of a $5 bill, nine silver dollars, four half dollars, five quarters, nine dimes, and 38 nickles. As the search warrant did not call for the bill, or the silver dollars, the justice required the constable to return the $5 bill and six of the silver dollars to the defendant. The other money was on hand at the time of the trial in the possession of the constable. The constable also found five No. 38 cartridges lying in an open plate in an open cupboard in the defendant's house.
There was a mass of immaterial evidence injected into the case as to the defendant's ownership of money about that time, and it was developed that in June the defendant had sold a cow for $18, and some weeks earlier a calf for $6, and that he usually paid for his groceries with his poultry and eggs. It was also shown that he traded in furs and pelts. It would serve no good purpose to repeat this great mass of unsatisfactory testimony. At the close of the testimony, the defendant requested the court to instruct the jury to acquit him, which the court refused. The court instructed the jury that if they find from the evidence that the defendant in the county of Douglas and state of Missouri, on or about the 10th of August, 1908, did willfully and unlawfully break into and enter a certain storehouse there situate, and that the said storehouse was at the time in the possession of the widow and heirs of J. W. Johnson, deceased, and took, stole, and carried away the property, etc., they would find him guilty and assess his punishment. The jury found the defendant guilty of burglary alone, and, after unsuccessful motions for new trial and in arrest of judgment, he was sentenced.
1. The crucial question in this case is whether there was any substantial evidence upon which to submit the guilt or innocence of the defendant to the jury. The defendant was a young married man, and lived with his wife and two small children about four miles from the town of Gardner, in Douglas county. On the night of the 10th of August, 1908, the store in which the post office was kept in Gardner was burglarized, and some goods and wares therein and the moneys belonging to the store and to the post office were stolen. After the burglary, a searching party, it would seem, found a piece of cloth in the neighborhood where the defendant lived in a hollow log about...
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The State v. Prunty
...in the case. State v. Castor, 93 Mo. 250; State v. Warford, 106 Mo. 62; State v. Scott, 109 Mo. 230; State v. Drew, 179 Mo. 321; State v. Hammons, 226 Mo. 611; State Belcher, 136 Mo. 137. (2) Evidence as to other crimes or larceny must be such as to prove the specific crime charged, or prov......
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...him with his last breath, and vests immediately in his heirs, or those, who will take under his will in case one is made. State v. Hammons, 226 Mo. 604, 126 S.W. 422, Pleasant v. State, 17 Ala. 190. While possession may support proof of ownership, the possession must be alleged and proven a......
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