State v. Hutchinson
| Decision Date | 01 July 1892 |
| Parties | The State v. Hutchinson, Appellant |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court. -- Hon. John G. Wear, Judge.
Reversed and remanded.
Lentz & Standard for appellant.
(1) The indictment in this cause is defective in that it fails to allege that the offense was committed at any certain time. 1 Bishop on Criminal Procedure, secs. 386, 406; 2 Bishop on Criminal Procedure, secs. 387, 131, 134. (2) There is no evidence in this record to sustain the charge of either burglary or larceny. And the court should have so told the jury. First. There is no proof that the building alleged to have been entered was a dwelling-house, or any part of a dwelling-house. 1 Bishop on Criminal Law [2 Ed.] secs. 167 168a, 168b, 172a; Revised Statutes, 1889, secs. 3512, 3525. State v. Williams, 12 Mo.App. 591. Second. There is no proof that defendant at any time broke open or entered the dwelling-house of Theodore Vandover or that of Theodrick Vandover. Proof of both breaking and entering is necessary in order to convict of burglary. 2 Bishop on Criminal Law [2 Ed.] secs. 80, 81, 82, 84; State v. Tyrrell, 98 Mo 357. Third. There is no proof that defendant intended to or did commit a felony. Revised Statutes, 1889, sec. 3520; State v. Tyrrell, 98 Mo. 357; Walton v State, 15 S.W. 646. Fourth. There is no proof that defendant ever took or carried away any money, the property of either Theodore or Theodrick Vandover. (3) The first instruction given by the court on behalf of the state is clearly erroneous, as there is no evidence to sustain this instruction either as to burglary or larceny. The instruction should have been confined to the testimony. State v. Brady, 87 Mo. 144; State v. Wilson, 88 Mo. 15; State v. Herrell, 97 Mo. 110. (4) First. Burglary and larceny are two separate and distinct offenses, although joined in the same indictment. And the jury may acquit of burglary and convict of larceny, or acquit of larceny and convict of burglary. And it was the duty of the court to so instruct the jury, and for failure to do so the cause must be reversed. State v. Hecox, 83 Mo. 537; State v. Owens, 79 Mo. 620; State v. Martin, 76 Mo. 337; State v. Kelsoe, 76 Mo. 505. Second. The court should give correct instructions in writing, covering the whole law arising on the facts, whether asked or not. State v. Palmer, 88 Mo. 568; State v. Brooks, 92 Mo. 542; State v. Banks, 73 Mo. 592; State v. Branstetter, 65 Mo. 149. (5) The third instruction asked by the defendant, and refused by the court, properly declared the law in relation to larceny, and should have been given, and for error in refusing to instruct the jury on this subject the case should be reversed. Black's Law Dictionary, p. 687; Revised Statutes, 1889, sec. 3535. (6) The first and fourth instructions asked by defendant and refused by the court should have been given. There was no evidence to support the charge of either burglary or larceny. (7) The instruction by the court of its own motion is wrong, because not supported by the evidence and because it does not sufficiently define what a dwelling-house was, as applied to the facts in this case. The fifth instruction asked by the defendant covering the same matter properly declared the law upon that subject, and the court erred in substituting therefor the one given of its own motion. 1 Bishop on Criminal Law, secs. 167, 168a, 168b, 172a; Revised Statutes, 1889, secs. 3525, 3512; State v. Williams, 12 Mo.App. 591. (8) There is a fatal variance between the allegations of the indictment, and the proof, the indictment alleging that it was Theodore Vandover's house that was entered, while the proof shows (if anything) a breaking of the house of Theodrick Vandover. This we think a fatal variance. State v. English, 67 Mo. 136; State v. Ham, 93 Mo. 191; State v. Fay, 65 Mo. 490; State v. Chamberlain, 75 Mo. 382. (9) No venue has been proven; no evidence was introduced to show that the offense described in the indictment was committed in Butler county.
John M. Wood, Attorney General, for the State.
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 ten years for burglary and two 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 fifteenth 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 Theodrick 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 expressed 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.
I. 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. Revised Statutes, 1889, sec. 3520; Bishop on Criminal Procedure, sec. 131; 2 Bishop on Criminal Law, sec. 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. Revised Statutes, 1889, sec. 4115; State v. Pratt, 98 Mo. 482, 11 S.W. 977.
II. 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 the mansion or dwelling-house in which burglary might be committed was held to include the outhouses, such as warehouses, barns, stables, cowhouses or dairyhouses, though not under the same roof or joining contiguous to the dwelling-house, provided they were parcel thereof, or within the curtilage." 2 American & English Encyclopedia of Law, 673; 2 Russell on Crimes, 15; Bishop on Statutory Crimes, sec. 278.
This has been changed by our statute, which provides that "no building shall be deemed a dwelling-house or any part of a dwelling-house within the meaning of the foregoing provisions (relating to burglary) unless the same be joined to, immediately connected with and is part of a dwelling-house."
We think there can be no doubt that the room in which the burglary was alleged to have been committed was a part of the dwelling-house within the meaning of the...
To continue reading
Request your trial