State v. Jeffords
| Decision Date | 28 October 1933 |
| Docket Number | 32743 |
| Citation | 64 S.W.2d 241 |
| Parties | STATE v. JEFFORDS |
| Court | Missouri Supreme Court |
Lawrence E. Tedrick and Byron Kearbey, both of Poplar Bluff for appellant.
Roy McKittrick, Atty. Gen., and Franklin E. Reagan, Asst. Atty Gen., for the State.
An information was filed in the circuit court of Butler county, Mo., charging the defendant with second degree burglary and larceny of a store at Marviell, Mo. The appellant took a change of venue from the judge, and also from the county. The case was sent to Ripley county, and was tried before Hon. E. M. Dearing, judge of the Twenty-First judicial circuit. On December 31, 1931, the appellant was tried, and the jury found him guilty of burglary in the second degree and larceny, and sentenced him to two years in the penitentiary on each charge. Appellant appeals this cause to this court.
I. An examination of the bill of exceptions incorporated in the record fails to disclose that the appellant lodged any exception to the action of the trial court in overruling his motion for a new trial. Where the record fails to show that the exception was saved to the action of the trial court in overruling the motion for new trial, none of the grounds for new trial set forth in said motion is for review upon appeal. State v. Arrowood (Mo. Sup.) 11 S.W.2d 1015, and cases cited therein.
II. It is our duty to examine the record proper. Defects in the information may be raised for the first time in this court. State v. Jordon (Mo. Sup.) 289 S.W. 540. The amended information charging the appellant with the crime of burglary and larceny is in one count, and complies in that respect with section 4056, R. S. 1929 (Mo. St. Ann. § 4056, p. 2854).
The appellant contends that the information is so fatally defective that it cannot support the verdict. The first reason assigned is that 'it does not allege some form of ownership of the building alleged to have been burglarized.' The amended information alleges that the appellant did 'feloniously break into and enter a certain store building located in Marviell, with intent to steal goods stored in said building, in the County of Butler and State of Missouri, and said store building being used as a store, and operated by Mr. and Mrs. John Sappington, and being a place where goods, wares and merchandise were stored and kept.'
The reason for the necessity of showing the ownership of the building burglarized is well stated in State v. Carey, 318 Mo. 813, 1 S.W.2d 143, loc. cit. 146, where Walker, J., said: 'These reasons, briefly stated, are: (1) For the purpose of showing that the house alleged to have been burglarized was not the dwelling of the accused; and (2) for the purpose of so identifying the offense as to protect the accused from a second prosecution for the same offense.'
To support the charge of burglary, it is not necessary to allege who owns the title to the building, but it is sufficient to allege the occupancy or possession at the time the offense was committed. 9 C. J. 1044; State v. McGuire, 193 Mo. 215, 91 S.W. 939.
We believe that the amended information sufficiently alleges occupancy or possession of the building in Mr. and Mrs. John Sappington to meet the first of the tests in the Carey Case, when it alleges that 'said store building being used as a store and operated by Mr. and Mrs. John Sappington.' This phrase is equivalent to saying that the building was occupied by Mr. and Mrs. John Sappington, and they were entitled to the possession of the building to the exclusion of the appellant. We also believe that the allegation in the amended information that appellant 'entered a certain store building located in Marviell,' and the allegation that 'said store building being used as a store and operated by Mr. and Mrs. John Sappington.' would bar another prosecution for the same offense, and would therefore meet the record test laid down in the Carey Case.
The appellant further claims that the information is fatally defective, in that 'it does not allege ownership of the goods alleged to have been stolen.' This complaint is without merit, as the amended information alleges that the appellant 'did wilfully, unawfully, burglariously and feloniously steal, take and carry away merchandise to the value of about $ 40.00, which was the property of the aforesaid Mr. and Mrs. John Sappington.' If it was their property, certainly they were the owners of the merchandise.
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