State v. Helms
| Decision Date | 01 February 1904 |
| Parties | STATE v. HELMS. |
| Court | Missouri Supreme Court |
1. Rev. St. 1889, § 3526, provided that every person convicted of breaking and entering any building, within the curtilage of a dwelling house and not forming a part thereof, or any shop, booth, etc., in which there should be goods or other valuable thing kept, with intent to steal, etc., should be adjudged guilty of burglary in the second degree. By Act May 31, 1899 (Rev. St. 1899, § 1886), this section was repealed, the Legislature enacting that every person who shall be convicted of breaking and entering into any building, in cases not considered burglary in the first degree, or any booth, tent, etc., shall be guilty of burglary in the second degree. Held, that breaking into a chicken house constituted burglary in the second degree, whether the chickens therein were kept for the purpose of trade and commerce or for the owner's own use, and whether they were driven into the chicken house at night or went voluntarily.
2. Unbuttoning the outside door of a chicken house and removing the slat fastening the inner door constitute a burglarious breaking.
3. Evidence, in a prosecution for burglary, held sufficient to sustain a finding of a breaking into the building.
4. A defendant in a prosecution for burglary cannot complain that he is acquitted of the accompanying larceny.
5. A person may be convicted of a burglary and acquitted of the accompanying larceny.
Appeal from Circuit Court, Andrew County; A. D. Burns, Judge.
Lewis H. Helms was convicted of burglary, and appeals. Affirmed.
Jno. W. Stokes, for appellant. The Attorney General and C. D. Corum, for the State.
On the 20th day of September, 1901, the prosecuting attorney of Andrew county filed an information, duly verified in the circuit court of that county, charging the defendant with feloniously and burglariously breaking into a certain chicken house belonging to Charles Trampe and his wife, Anne E. Trampe, and stealing therefrom 11 chickens, of the value of $2.75, which belonged to Anne E. Trampe, who, it was alleged, was a joint owner with her husband of the property. The evidence showed that on the night of September 11, 1901, the defendant was observed in the vicinity of the home of the prosecuting witnesses; that he was traveling in a wagon suitably adapted for the purpose of transporting chickens; and that he was seen to stop near the residence of the prosecuting witnesses, leave his wagon, and go towards the premises which he was charged with burglarizing. He was not gone long until he returned, carrying with him a sack containing about one dozen chickens belonging to the prosecuting witness, Anne E. Trampe. The chickens were identified by her; indeed, there is no conflict in the testimony in this case, except in relation to the burglary. The defendant admitted that he stole the chickens. The only issue of fact is whether or not he opened the doors which inclosed the chicken house. The testimony on behalf of the state tends to show that there were two doors of this chicken house, one on the inside of the other. The prosecuting witness testified that the inside door was closed by her on the night that the chickens were stolen, and that it was fastened by her with the slat near the top of the door. She states that she also closed and fastened the outside door with a button, and that the following morning she found the doors of the chicken house open. The defendant testified in his own behalf, admitting the larceny of the chickens, but stated that the door was partially open at the time that he visited the hen roost, and that it was sufficiently ajar so as to permit his entrance into the chicken house without removing the latch or even touching the door. He stated that he only saw one door, and his testimony tends to show that there was only one door to the chicken house. The trial resulted in his conviction and sentence to three years in the penitentiary, from which he appeals to this court.
1. The information is sufficient. Prior to 1899, section 3526, Rev. St. 1889, provided that "every person who shall be convicted of breaking and entering, first, any building within the curtilage of a dwelling house but not forming a part thereof, or second, any shop, booth, etc., in which there shall be at the time some human being or goods, wares, merchandise or other valuable thing kept or...
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