State v. Howard

• Decision Date: 09 May 1912
• Citation: 147 S.W. 95,242 Mo. 432
• Parties: THE STATE v. THOMAS HOWARD, Appellant
• Court: Missouri Supreme Court

147 S.W. 95

242 Mo. 432

THE STATE v. THOMAS HOWARD, Appellant

Supreme Court of Missouri, Second Division

May 9, 1912

Appeal from Jackson Circuit Court. -- Hon. Ralph S. Latshaw, Judge.

Affirmed.

W. F Riggs for appellant.

(1) The identity of the defendant as the person who committed the crime, barring the testimony of John Shoemaker, was wholly circumstantial, and the chain is not complete. The morning of Jan. 11, 1911, at 3:15 a. m., was cloudy, and the moon set at 3:50 a. m. Could a witness be more thoroughly impeached? When such a case occurs, relief will be granted by this court. State v. Huff, 161 Mo. 459; State v Packwood, 26 Mo. 340; State v. Primm, 98 Mo 373; State v. Francis, 199 Mo. 671. "Courts will take judicial notice of the almanac, or as it has been put, the almanac is a part of the law of the land." 1 Ency. Ev. 768. "And the almanac is competent evidence to prove the time of the rising and phase of the moon." 1 Ency. Ev. 769. (2) The information is in two paragraphs. The first paragraph is insufficient in law to charge burglary in the second degree, because of the omission to allege that the acts and facts alleged in the first paragraph were "against the peace and dignity of the State." State v. Skillman, 209 Mo. 408; State v. Campbell, 210 Mo. 202. We have two statutes leveled against burglary with explosives, secs. 4526 and 4599, R. S. 1909. Under section 4599, the vital and essential elements are the wilful and malicious injury of the property of another, without which an indictment or information would be fatally defective. 2 Whart. Crim. Law (8 Ed.), No. 1079; State v. Crenshaw, 41 Mo.App. 24; State v. Boies, 68 Kan. 167; People v. Jones, 241 Ill. 482. With the law in this condition the Legislature enacted, sec. 4526. "An indictment based on a statute must contain all the forms of expression and descriptive words which are necessary to bring the defendant precisely within the definition of the statute." State v. Miller, 132 Mo. 297; State v. Hesseltine, 130 Mo. 468; State v. Hall, 130 Mo. 170; State v. Helderie, 203 Mo. 574; State v. Pitts, 58 Mo. 556; People v. Flack, 125 N.Y. 324. (3) The information is fatally defective under section 4526. The information negatives the fact of explosives being used in committing the burglary. It expressly avers that after the burglary was complete said "Marcus Stevens and Thomas Howard did then and there use a certain high explosive for the purpose of breaking into and demolishing a certain iron safe." It is not alleged that the demolishing of the safe was "with intent to commit some crime," or "for the purpose of committing any crime."

Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for respondent; A. Z. Patterson of counsel.

(1) The information charges the essential facts constituting the crime of burglary with explosives, as defined by section 4525, Revised Statutes 1909. (2) The evidence amply sustains the verdict. The circumstances and facts in evidence showing defendant's guilt were consistent with each other and were absolutely inconsistent with any reasonable theory of his innocence. They were sufficient to show defendant's guilt, though they only constituted circumstantial evidence thereof.

BLAIR, C. Roy, C., concurs.

OPINION

BLAIR, C.

This is an appeal from a judgment of the circuit court of Jackson county sentencing defendant to twenty-five years in the penitentiary for the offense of burglary with explosives, as that offense is defined by section 4526, Revised Statutes 1909.

The information charges defendant and one Stevens with burglariously and feloniously breaking and entering a saloon at 2404 East Eighteenth street in Kansas City, with intent to steal goods therein, and proceeds as follows: "And the said Marcus Stevens and Thomas Howard alias Tom Fallon alias Bradley alias Elliott after having feloniously and burglariously broken and entered into said building in the manner aforesaid and by the means aforesaid did then and there and while in said building use a certain high explosive, to-wit: nitroglycerin, and other high explosives unknown to the prosecuting attorney, for the purpose of and with the felonious intent then and there of breaking into and demolishing a certain iron safe then and there being and in said building situate, the property of the said Powers and Beghtol, in which said iron safe there was then and there valuable things kept and deposited, and by the use of said nitroglycerin and other high explosives unknown to the said prosecuting attorney did break into and demolish said safe; and the said Marcus Stevens and Thomas Howard alias Tom Fallon alias Bradley alias Elliott, four ($ 4) dollars lawful money of the United States of the value of four dollars the property of the said Powers and Beghtol then and there being in said building did then and there unlawfully, feloniously and burglariously steal, take and carry away, against the peace and dignity of the State."

Defendant was tried separately. The evidence for the State tended to show that defendant and Stevens were rooming together on East Seventeenth street in Kansas City for some days prior to the commission of the offense of which the former was convicted that about 11 p. m. on the night of January 10th they were seen together in a saloon at 2400 East Eighteenth street, three doors from the saloon subsequently burglarized and again at 2:45 a. m. on January 11, 1911, were seen, not together but about the same time, at the corner of Eighteenth and Olive streets whence defendant proceeded north and Stevens east on Eighteenth street toward Powers and Beghtol's saloon. One half hour later an explosion was heard and a witness who was attending what he termed a wake at the premises in the rear of the saloon and who had gone into the intervening alley saw defendant running along the alley from the rear of the saloon. That Powers and Beghtol's saloon had been burglarized and entrance effected by cutting through a rear door and that an iron safe therein had been blown open and entirely demolished by some high explosive is established by the testimony of numerous witnesses. A bottle half full of nitroglycerine was found in the saloon. A small amount of money was taken. On the night of January 13, 1911, defendant and Stevens were arrested in their room at Seven-teenth street. A complete kit of burglars' tools was found in the room. Defendant testified in his own behalf. He volunteered the information that he had served terms in several State prisons and had participated in one desperate attempt to escape from that of Colorado. He and Stevens testified that they were not in the vicinity of the burglarized saloon on the...