State v. Hayes

• Decision Date: 02 June 1891
• Citation: 16 S.W. 514,105 Mo. 76
• Parties: The State v. Hayes, Appellant
• Court: Missouri Supreme Court

16 S.W. 514

105 Mo. 76

The State v. Hayes, Appellant

Supreme Court of Missouri, Second Division

June 2, 1891

Appeal from Sullivan Circuit Court. -- Hon. G. D. Burgess, Judge.

Reversed and remanded.

A. C Eubanks and A. D. Christy for appellant.

It is clear from the evidence that there was a plan agreed upon to entrap defendant laid by the witnesses Payne, Hill and Van Wye. Hill was to bring with him the defendant Hayes, and Hill was acting as the agent of the "committee" and A Payne, the proprietor of the store, and, if this was true then there was no burglary committed, and the court erred in not giving the instructions prayed by defendant and refused by the court. Rex v. Johnson, Car. & M. 218; Rex v. Eggington, 2 B. & P. 508; 2 Leach [4 Ed.] 913; 2 East P. C. 494, 666; 1 Bishop's Criminal Law [7 Ed.] sec. 262. If Hill raised the outer window and entered said building and handed out said bacon to defendant, as testified by the witnesses both for and against the defendant, and he did so by the consent or agency of the proprietor Payne, then he was not guilty of either burglary or larceny in so doing, and hence the defendant could not be guilty of either, by being present and assisting Hill to do said acts, and the court should have so instructed the jury; and even if the instructions prayed by defendant were vicious or wrong then it was the duty of the court to instruct the jury properly, so as to cover the whole case. State v. Stonum, 62 Mo. 596; State v. Branstetter, 65 Mo. 149.

John M. Wood, Attorney General, for the State.

(1) The indictment charges burglary in the second degree and larceny. It is in one count, and is drawn under sections 1298 and 1301, Revised Statutes, 1879, sections 3526 and 3529, Revised Statutes, 1889, and properly charges the offense. State v. Henley, 30 Mo. 509; State v. Turner, 63 Mo. 436; State v. Bruffey, 75 Mo. 389; State v. Beckworth, 68 Mo. 83. (2) The names of the owners of the store were sufficiently set out. Sections 1820 and 1821, Revised Statutes, 1879; State v. Barker, 64 Mo. 282; State v. Bibb, 68 Mo. 286; State v. Mohr, 68 Mo. 303. (3) The court in its instructions properly declared the law to the jury. First. Defendant was guilty if he aided or in any way assisted Hill in the commission of the offense, although he did not enter the building. State v. Owens, 79 Mo. 619; State v. Hollenscheit, 61 Mo. 302, and authorities cited; State v. Testerman, 68 Mo. 413; State v. Phillips & Ross, 24 Mo. 475; State v. Miller, 67 Mo. 607; State v. Cox, 65 Mo. 29; State v. Miller, 100 Mo. 606; R. S. 1889, sec. 3944. Second. Furnishing facilities or temptations in order to entrap a wrong-doer is not a consent in law. Mr. Bishop says: "A common case is where burglars, intending to break into a house and steal, tempt the occupant's servant to assist them; and, after communicating the fact to his master, he is authorized to join them in appearance. For what burglars personally do under such an arrangement, they are by all opinions responsible." 1 Bish. Crim. Law, sec. 262. The defendant was a principal in the first degree under our statute, and, if he acted from a felonious intent, was guilty. Third. As to what constitutes a breaking, see State v. Hicox, 83 Mo. 538. Fourth. The general instructions were proper. State v. Butterfield, 75 Mo. 297; State v. Owens, 79 Mo. 619; State v. Hicox, supra; R. S. 1889, secs. 3526 and 3529.

OPINION

Thomas, J.

The defendant appeals from a sentence of five years' imprisonment in the penitentiary for burglary and larceny, by the circuit court of Sullivan county, November 23, 1887.

The evidence shows that A. Payne & Son kept a general store in Boynton, Sullivan county, in 1886, and that on the night of June 1, 1886, Addison Payne, Jr., one of the members of the firm of A. Payne & Son, and Enoch Van Wye, Frank Van Wye, James Yardley, Sherman Van Wye and John E. Senate secreted themselves in and near the storehouse of said Payne & Son for the purpose of capturing defendant and one Wm. Hill, if they should break into the store. About eleven or twelve o'clock of that night defendant and Hill came, sat down on the well-curb and talked a short time, and then went to a window of the warehouse attached to the store. Defendant raised the window about six inches, when Hill helped him break the catch and raised the window so a man could go in. Defendant assisted Hill in through the window. The latter handed out to the former a piece of bacon (side meat), weighing forty-five pounds. Defendant asked that more meat be handed out, but this was all that was taken. Defendant then assisted Hill out of the window and picked up the meat, which was in a gunny-sack, and they both started off. When they got fifteen or twenty steps away, they were halted and some shots were fired. They both ran, and the defendant threw the meat down, and was captured a short distance from the store. He denied being at the store. Hill was not arrested at all. Hill was the step-son of A. Payne, Sr., and the half brother of A. Payne, Jr.

It further appears that defendant, about a week before the alleged burglary, proposed to Hill to go with him and break into and rob Payne's store. Hill notified "Enoch Van Wye and John E. Senate of the antihorse thief association of Boynton, Missouri, of Hayes' proposition." On the night of June 1, 1886, Hill met defendant about half a mile from the store, whence they went and broke in, as above stated. A. Payne was not sworn as a witness, but A. Payne, Jr., one of the proprietors of the store, testified that he watched the store that night, expecting that defendant and Hill would come, break into it and steal, but that he gave no consent for them to enter the store. He had been informed by Van Wye that these parties were expected there that night, and he, with others, watched to capture them if they did come. Frank Van Wye and James Yardley testified that they had been informed by Enoch Van Wye and John E. Senate that defendant and Hill were expected there that night, and they guarded the store to capture them if they did come.

The defendant called Enoch Van Wye and Senate as witnesses, who corroborated the state's witnesses in all essential particulars. Defendant also read the deposition of Wm. Hill, who had moved to Kansas in the meantime. Hill stated in substance that defendant proposed to him to rob the store in question about a week before June 1, and he met defendant and they went and broke into it as stated above. He informed Enoch Van Wye and Senate of defendant's proposition. He said the Paynes did not consent for him to enter the store. He testified as follows:

"Q. Who first proposed to go and rob the store in question? A. Defendant.

"Q. What was your object in going to the store in question with defendant Hayes? A. My object was to let the anti-horse thief association catch him burglarizing and robbing the store, as he had the reputation of being a desperate character."

The only question of importance before us grows out of the instructions of the court to the jury. The court gave a lengthy charge to the jury, and refused several declarations of law asked by defendant. It will not be necessary, however, to present the question involved, to do more than copy the following instruction given by the court: "The jury are further instructed that William Hill is not on trial in this case, and that, although the jury may believe from the evidence that said Hill did not break and enter the storehouse of A. Payne & Son with the felonious intent to steal therefrom, yet, if they further believe from the evidence beyond a reasonable doubt that the defendant was present and assisted said Hill in breaking and entering said store and taking therefrom a side of meat of any value whatever, with the felonious intent to convert said meat to his own use, then in that case the defendant is guilty of burglary, and the jury ought to so find."

It will be seen the trial court told the jury in this instruction that defendant was guilty of burglary, if he, with a felonious intent, assisted and aided Hill to enter the building, notwithstanding Hill himself may have had no such intent. In this we think the court erred. One cannot read this record without being convinced beyond a reasonable doubt that Hill did not enter the warehouse with intent to steal. He was the step-son of the senior, and the half brother of the junior, member of the firm of A. Payne & Son, and all the evidence shows that he engaged in the enterprise for the sole purpose of enabling the parties on guard to capture the defendant, and that this purpose on his part was well known to the owners of the store. We may assume then, for the sake of the argument, that Hill committed no crime in entering the wareroom.

The act of Hill, however, was by the instruction of the court imputed to defendant. This act, according to the theory of the instructions, so far as Hill was concerned, was not a criminal act, but when it was imputed to defendant it became criminal, because of the latter's felonious intent. This would probably be true if Hill had acted under the control and compulsion of defendant, and as his passive and submissive agent.

But he was not a passive agent in this transaction. He was an active one. He acted of his own volition. He did not raise the window and enter the building with intent to commit crime, but simply to entrap defendant in the commission of crime, and have him captured. Judge Brewer sets this idea in a very clear light in State v. Jansen, 22 Kan. 498. He says: "The act of a detective may, perhaps, be not imputable to the defendant, as there is a want of community of motive. The one has a criminal intent, while the other is seeking the discovery and punishment of crime." Where the owner learns...