State v. Hutchinson

• Decision Date: 01 July 1892
• Citation: 111 Mo. 257,20 S.W. 34
• Parties: STATE v. HUTCHINSON.
• Court: Missouri Supreme Court

20 S.W. 34

111 Mo. 257

STATE v. HUTCHINSON.

Supreme Court of Missouri, Division No. 2.

July 1, 1892.

BURGLARY — INDICTMENT — STATEMENT OF TIME — VARIANCE AS TO NAME — DWELLING HOUSE — INSTRUCTIONS.

1. Rev. St. 1889, § 3520, which makes no distinction between burglary committed by day or at night, and section 4115, which obviates the necessity of stating specifically in an indictment the time at which any offense was committed, when time is not of the essence, relieve the necessity for so stating the time in an indictment for burglary.

2. A storage room, included under the same roof and connected by a porch on each side with a room in which the owner lives, though without internal communication with such room, is a part of a dwelling, within Rev. St. 1889, § 3525, declaring that no building shall be deemed a dwelling, or any part thereof, so as to be the subject of burglary, unless the same be joined to or immediately connected therewith.

3. On a trial for burglary and larceny, a variance between the given name of the owner of the building and the property alleged to have been stolen, as charged in the indictment and as proved on the trial, is not ground for an acquittal, as being material to the merits of the case, or prejudicial to defendant, within Rev. St. 1889, § 4114, since it is not necessary to prove the ownership of the property stolen, but only the breaking and entering with intent to steal.

4. Under Rev. St. 1889, § 3529, allowing a joinder of burglary and larceny in the same count, and a conviction for either or both, it is error to instruct as to burglary, and as to burglary and larceny, without instructing also as to larceny.

Appeal from circuit court, Butler county; JOHN G. WEAR, Judge.

Sylvester Hutchinson, having been convicted of burglary and grand larceny, appeals. Reversed.

Lentz & Standard, for appellant. The Attorney General, for the State.

MACFARLANE, J.

Defendant was convicted in the circuit court of Butler county of both burglary and grand larceny. The charges for both of these offenses were contained in one indictment. He was sentenced to 10 years for burglary and 2 years for larceny, in accordance with the verdict of a jury, and appealed to this court. Defendant was charged in the indictment with breaking into and entering the dwelling house of Theodore Vandover, in which there was at the time a human being, on or about the 15th day of June, 1890, by unlocking an outer door of said dwelling house, by means of a false key, with intent to steal certain money, and with having stolen therefrom $100, the property of the said Theodore Vandover. The evidence established the fact that Theodore Vandover owned a certain building, which consisted of two rooms separated by a space of about four feet, but both inclosed under the same roof, and connected by porches on each side, extending from the door of one to the door of the other. Mr. Vandover lived in one of these rooms, and the other was used for storing and keeping things not in immediate use. No one slept in this room, or occupied it for any purpose. There was no internal communication between this room and the other. Vandover kept his money in this room, the door of which was kept locked. Some time in June, 1890, the money was taken. Defendant had worked for Vandover during the month of June. While there he had been detected fitting or trying a key to the lock of this lumber room. When arrested, in August, he had $115 in his possession, which he apparently tried to conceal. He expessed a willingness to the officers who arrested him to return the money to Vandover. He undertook to explain his possession of the money by saying that he had sold some land to his mother, who had paid him the money. There was no evidence of the burglary except what arose by implication from these facts.

1. The first assignment of error is that the indictment is defective in not alleging that the offense was committed at any certain time. This assignment is not well taken. Under our statute no distinction is made between a burglary of a dwelling house, whether committed by day or at night, and consequently there is no reason, as at common law, to charge in the indictment the hour at which the offense was committed. Rev. St. 1889, § 3520; Bish. Crim. Proc. § 131; 2 Bish. Crim. Law, § 101. Our statute also obviates the necessity of stating specifically in the indictment the time at which the offense was committed, when time is not of the essence of the offense. Rev. St. 1889, § 4115; State v. Pratt, 98 Mo. 482, 11 S. W. Rep. 977.

2. It is insisted, in the second place, that there is no proof that the building alleged to have been entered was a dwelling house, or any part of a dwelling house. "At common law, a dwelling house in which burglary might be committed was held to include the outhouses, such as warehouses, barns, stables, dairy houses, though not under the same roof, or joining...