State v. Lackey

CourtMissouri Supreme Court
Writing for the CourtKennish
Citation132 S.W. 602,230 Mo. 707
PartiesSTATE v. LACKEY.
Decision Date29 November 1910
132 S.W. 602
230 Mo. 707
STATE
v.
LACKEY.
Supreme Court of Missouri, Division No. 2.
November 29, 1910.

1. CRIMINAL LAW (§ 901)—TRIAL—DEMURRER TO EVIDENCE—WAIVER.

Where accused, after an unsuccessful demurrer to the state's evidence, introduces evidence in support of his defense, he waives his rights under the demurrer.

2. BURGLARY (§ 10)—ELEMENTS OF OFFENSE —OWNERSHIP OF GOODS—BURGLARY IN THE SECOND DEGREE.

The ownership of the goods within the building alleged to have been broken into is not an essential element of burglary in the second degree under Rev. St. 1909, § 4520, providing that one convicted of breaking and entering any building, the breaking and entering of which shall not be declared by statute to be burglary in the first degree, with intent to steal or commit a felony therein, shall be guilty of burglary in the second degree.

3. INDICTMENT AND INFORMATION (§ 130)— JOINDER OF OFFENSES.

Though by statute burglary and larceny may both be charged in the same indictment or information, either in the same count or in different counts, they should be treated as separate offenses.

4. LARCENY (§ 7)—ELEMENTS OF OFFENSE— OWNERSHIP OF STOLEN PROPERTY.

The ownership of the property stolen is an essential element of larceny and must be properly alleged in the indictment or information, if the name of the owner is known, and proved by sufficient evidence, or the conviction cannot be sustained.

5. LARCENY (§ 7)—OWNERSHIP OF PROPERTY.

The ownership necessary to support a charge of larceny may be either general or special, and the possession of such owner may be actual or constructive, and, if the property stolen is in the actual possession of one not the general owner, such one has a constructive possession, and the ownership may be properly alleged and proved either in the special owner having the actual, or in the general owner having a constructive, possession, because of such ownership.

[132 S.W. 603]

6. LARCENY (§ 40)—SUFFICIENCY OF INFORMATION —OWNERSHIP OF STOLEN GOODS— VARIANCE BETWEEN ALLEGATION AND PROOF.

Where a traveling salesman called upon a customer to sell him clothing, and the customer requested the salesman to sell his clerk a suit of clothes, to which the salesman agreed, and took the clerk's measurements, and the goods were selected and the price was agreed upon, which was the wholesale price, and it was agreed that the suit was to be forwarded by express to the customer, who was to pay the express charges and send a check to the salesman's employers for the price, and the suit, while in possession of the express company, was stolen, the ownership of the suit could properly have been laid in the carrier in the information in a prosecution for the larceny, as special owner in actual possession of the goods, since delivery of the goods by the vendor to the carrier is a delivery to the consignee, unless the contract of shipment provides to the contrary, and the possession of the carrier vested a constructive possession in the customer and consignee, so that the ownership of the goods could properly have been laid in him, but the evidence showing the transaction embracing the sale, delivery of and payment for the clothes to have been between the salesman, employer, and customer, and not showing possession or ownership in the clerk, there was a variance between the information alleging ownership in the clerk and the evidence as to ownership.

7. CRIMINAL LAW (§ 1186)—SUFFICIENCY OF INFORMATION—OWNERSHIP OF GOODS—VARIANCE—REVERSAL.

The merits of the case in no wise depending upon the question whether the clerk, the customer, or the carrier was the owner of the stolen goods, and the trial court not finding the variance material to the merits and prejudicial to accused's defense, the variance is not ground for reversal under Rev. St. 1909, § 5114, providing that, upon trial of a felony, a variance between the information and evidence as to the ownership of property, described therein, shall not be ground for an acquittal, unless the court before whom the trial is had shall find that such variance is material to the merits and prejudicial to accused's defense.

8. CRIMINAL LAW (§ 1064)—APPEAL—RESERVATION OF GROUND OF REVIEW—NECESSITY FOR EXCEPTIONS.

Where no exception is preserved in the motion for new trial to the action of the court in giving instructions, error in giving instructions for the state, over the objection of accused, cannot be reviewed on appeal.

9. CRIMINAL LAW (§ 772)—TRIAL—DUTY TO INSTRUCT—PROSECUTION FOR DISTINCT OFFENSES.

In a prosecution for burglary and larceny, accused was entitled to instructions upon each of the two offenses charged as fully as though he had been charged separately for each felony, and to have the jury pass upon his guilt or innocence of each offense, and to acquit him of either unless he was found guilty beyond a reasonable doubt, and it was reversible error for the court to charge that under the evidence the jury could find accused guilty of both offenses or could acquit him of both offenses without authorizing them to convict of one offense and acquit of the other.

10. CRIMINAL LAW (§ 824)—TRIAL—DUTY TO INSTRUCT.

While, upon certain collateral questions arising in a criminal case, the failure of the court to instruct is not prejudicial error unless an instruction was requested by accused upon the subject, yet the court must instruct upon all questions of law necessary for the information of the jury, whether requested or not.

Appeal from Circuit Court, St. Clair County; Chas. A. Denton, Judge.

Andrew Lackey was convicted of burglary and larceny, and he appeals. Reversed and remanded.

Ralph P. Johnson and Theo. O. Williams, for appellant. E. W. Major, Atty. Gen., and Jno. M. Atkinson, Asst. Atty. Gen., for the State.

KENNISH, J.


Andrew Lackey, the appellant herein, was prosecuted by information in the circuit court of St. Clair county for burglarizing the depot of the St. Louis & San Francisco Railroad Company, located at the town of Osceola, in said county, and for having stolen therefrom one suit of clothes, the personal property of one Roe Callon, of the value of $12.50. He was thereafter tried and by a jury found guilty of burglary in the second degree, and his punishment assessed at three years in the penitentiary, and also found guilty of larceny, as charged, and his punishment assessed at two years in the penitentiary. After timely motions for a new trial and in arrest were filed and by the court overruled, appellant brings his cause to this court by appeal, and assigns error.

The evidence for the state tended to prove that the Simmons-Burks Clothing Company is located at Springfield, this state, and is engaged in the wholesale of ready-made clothing. Some time in the month of July, 1908, J. J. Jones, a traveling salesman for said company, called on a merchant by the name of J. H. Foster, who was engaged in business at Monegaw Springs, near Osceola, for the purpose of selling him a bill of clothing. As appellant challenges the sufficiency of the evidence to prove the ownership of the property alleged to have been stolen, and as charged in the information, it is important to set out the evidence offered by the state upon that issue. Roe Callon, the alleged owner of the suit of clothes, was not a witness at the trial, neither was Foster, his employer, and the only evidence in the record to prove ownership in Callon is that given by Jones, the salesman, and is as follows: "I called on Mr. J. H. Foster of Monegaw

132 S.W. 604

Springs, I think it was July 23d of last year, and, of course, to sell a bill of clothing. That is the first time I ever met Mr. Roe Callon. He was clerking for him. * * * Mr. Foster said he didn't have room at that time to put in clothing, but that later he expected to buy some clothing from us, and said he would like for me to sell his clerk a suit; that he had been talking of wanting to go to Clinton; and that he hated to spare him. And I said, `Certainly, I will do so.' And I took him down to the hotel, and he and his mother selected a suit, 6,569, the number, and I took his measurement, and tried on the coat—I didn't carry anything of the suit except the coat—and told him a 35 coat and vest would fit him nicely; I tried one of them on, and his mother decided with me. Then I took his waist measure for the pants, which was 32 in the length of the leg, taking, as we clothing men do, the crotch measure, which would be 33; and of course, I sent him the...

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50 practice notes
  • State v. Davis, No. 33975.
    • United States
    • United States State Supreme Court of Missouri
    • July 11, 1935
    ...234 S.W. 802, 290 Mo. 232; State v. Starr, 148 S.W. 867, 244 Mo. 161; State v. Harris, 134 S.W. 536, 232 Mo. 317; State v. Lackey, 132 S.W. 602, 230 Mo. 707; State v. Palmer, 88 Mo. 568; State v. Branstetter, 65 Mo. 155; State v. Stonum, 62 Mo. 596; Hardy v. State, 7 Mo. Roy McKittrick, Att......
  • State v. Chaney, Nos. 48242
    • United States
    • United States State Supreme Court of Missouri
    • September 11, 1961
    ...of the case, which is defined to mean all the essential elements of the offense embraced within the charge. State v. Lackey, 230 Mo. 720, 132 S.W. 602. This relates to the purpose of certain evidence. We have held that a rule of evidence is a matter collateral, and not an essential element ......
  • Stassi v. United States, No. 9086.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 8, 1931
    ...112 A. 38, 269 Pa. 39; Pearson v. State, 226 S. W. 538, 143 Tenn. 385; Duroff v. Commonwealth, 232 S. W. 47, 192 Ky. 31; State v. Lackey, 132 S. W. 602, 230 Mo. 707. Counsel had no right, however, to assume that the court, in the absence of a request, would instruct upon the evidence concer......
  • State v. Conway
    • United States
    • United States State Supreme Court of Missouri
    • March 21, 1912
    ...cit. 604, 102 S. W. 504; State v. Kelsoe, 11 Mo. App. 91; Id., 76 Mo. 505; State v. Nicholas, 222 Mo. 425, 121 S. W. 12; State v. Lackey, 230 Mo. 707, 132 S. W. According to the foregoing authorities, it was necessary for the information of the jury that they should have been instructed as ......
  • Request a trial to view additional results
50 cases
  • State v. Davis, No. 33975.
    • United States
    • United States State Supreme Court of Missouri
    • July 11, 1935
    ...234 S.W. 802, 290 Mo. 232; State v. Starr, 148 S.W. 867, 244 Mo. 161; State v. Harris, 134 S.W. 536, 232 Mo. 317; State v. Lackey, 132 S.W. 602, 230 Mo. 707; State v. Palmer, 88 Mo. 568; State v. Branstetter, 65 Mo. 155; State v. Stonum, 62 Mo. 596; Hardy v. State, 7 Mo. Roy McKittrick, Att......
  • State v. Chaney, Nos. 48242
    • United States
    • United States State Supreme Court of Missouri
    • September 11, 1961
    ...of the case, which is defined to mean all the essential elements of the offense embraced within the charge. State v. Lackey, 230 Mo. 720, 132 S.W. 602. This relates to the purpose of certain evidence. We have held that a rule of evidence is a matter collateral, and not an essential element ......
  • Stassi v. United States, No. 9086.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 8, 1931
    ...112 A. 38, 269 Pa. 39; Pearson v. State, 226 S. W. 538, 143 Tenn. 385; Duroff v. Commonwealth, 232 S. W. 47, 192 Ky. 31; State v. Lackey, 132 S. W. 602, 230 Mo. 707. Counsel had no right, however, to assume that the court, in the absence of a request, would instruct upon the evidence concer......
  • State v. Conway
    • United States
    • United States State Supreme Court of Missouri
    • March 21, 1912
    ...cit. 604, 102 S. W. 504; State v. Kelsoe, 11 Mo. App. 91; Id., 76 Mo. 505; State v. Nicholas, 222 Mo. 425, 121 S. W. 12; State v. Lackey, 230 Mo. 707, 132 S. W. According to the foregoing authorities, it was necessary for the information of the jury that they should have been instructed as ......
  • Request a trial to view additional results

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