State v. Henley

• Decision Date: 31 July 1860
• Citation: 30 Mo. 509
• Parties: THE STATE, Defendant in Error, v. HENLEY, Plaintiff in Error.
• Court: Missouri Supreme Court

30 Mo. 509

THE STATE, Defendant in Error,

v.HENLEY, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1860.

1. An indictment charging that the defendant, “at, &c., on, &c., feloniously, burglariously, and forcibly did break into and enter a certain meat-house and building, the property of one B., then and there being, by forcibly breaking the lock and door thereof, in which said meat-house and building there were then and there, at the time aforesaid, goods, wares and merchandise, and other valuable things kept and deposited; and that the said H. so brake into and entered said meat-house and building, as aforesaid, with intent then and there to commit a larceny, by then and there feloniously stealing, taking and carrying away the goods, chattels and personal property of the said B.; and five pieces of pork, &c., [describing the articles and giving their value;] all of the goods, chattels and personal property and valuable things of the said B., then and there being found in said meat-house and building, he, the said H., did then and there feloniously steal, take and carry away, contrary,” &c., is a good indictment under the sixteenth section of the third article of the act concerning crimes and punishments. (R. C. 1855, p. 573, § 16.)

2. Where person is prosecuted for both burglary and larceny in the same indictment, and is convicted of both offences, he may, under the nineteenth section of the third article of the act concerning crimes and punishments (R. C. 1855, p. 574), be punished by imprisonment in the penitentiary, in addition to the punishment prescribed for the burglary, not exceeding five years. The jury would be authorized in such case to assess the punishment for the larceny, in addition to that for the burglary, at any period not exceeding five years.

Error to Cole Circuit Court.

The following is the instruction referred to below in the opinion of the court: “If the jury believe from the evidence that the prisoner, at the county of Cole, at any time within three years next before the finding of this indictment, feloniously, burglariously and forcibly broke into and entered the meat-house and building of Jesse B. Baber by forcibly breaking the lock thereof, with intent to commit a larceny by feloniously taking and carrying away any goods, chattels and personal property of any value whatever, they will find him guilty of burglary in the second degree, and assess his punishment to not less than three years in the penitentiary; but if the jury further find that the prisoner, after burglariously, feloniously and forcibly entering said meat-house and building, did feloniously steal, take and carry away any goods, personal property or valuable thing of any value whatever, they will find him guilty of both burglary and larceny, and assess his punishment to five years in the penitentiary.”

The defendant was found guilty, and his punishment assessed at five years' imprisonment in the penitentiary.

Batte, Belch & Lay, for plaintiff in error.

I. The court should have sustained the motion to quash and the motion in arrest of judgment. The indictment for burglary was bad at common law. (Whart. C. L. p. 685.) No statutory provisions make it good. It is not good under the sixteenth section of the third article of the act concerning crimes and punishments. It ought to have charged directly and affirmatively either that he broke and entered the building with intent to steal or commit a felony therein, or that he broke and entered said building with intent to steal the goods, wares and merchandise of the said Baber, which were at the time kept and deposited in said building, and not merely the intent to steal the goods, &c., of Baber, without alleging that it was the particular goods kept and deposited in said building. The indictment must charge an intent to commit a felony in the building, the intent to steal the particular goods deposited. (See Whart. C. L. p. 238; 1 Chit. C. L. p. 282.) This defect is not cured because defendant is charged with the actual commission of a felony in said building.

II. The instructions given were erroneous. The punishment prescribed in the second instruction in case of conviction of both burglary and larceny is erroneous. The minimum punishment for burglary is three years. Under section nineteen the jury might assess the punishment for the larceny at imprisonment for any period not exceeding five years. The court had no right to fix the punishment arbitrarily. The other instructions were wrong.

Knott, (attorney general,) for the State.

I. The indictment is sufficient. (16 Mo. 550; R. C. 1855, p. 574, § 19; 3 Rawle, 207; 3 Fost. 301; 20 Pick. 356; 3 Metc. 816.) The court committed no error in giving instructions. The defendant can not complain of the second instruction. It fixes the lowest punishment that could be inflicted under the law. Three years is the shortest term for burglary alone. Two years is the shortest term for the larceny.

EWING, Judge, delivered the opinion of the court.

This was an indictment for burglary and larceny under the sixteenth section of the third article of the act concerning crimes and punishments, which declares that “every person convicted of breaking and entering any shop, store, booth, tent, warehouse, or other building, or any boat or vessel, in which there shall be at the time some human being, or any goods, wares, merchandise or other valuable thing kept or deposited, with intent to steal or commit any felony therein, shall, on conviction, be adjudged guilty of burglary in the second degree.” The indictment charges that the defendant “at, &c., on, &c., feloniously and forcibly did break into and enter a certain meat-house and building, the property of one Jesse B. Baber, then and there being, by forcibly breaking the lock and door thereof, in which said meat-house and building there were then and there, at the time...