State v. Linders

• Decision Date: 11 June 1923
• Docket Number: No. 23717.,23717.
• Citation: 253 S.W. 716,299 Mo. 671
• Parties: STATE v. LINDERS.
• Court: Missouri Supreme Court

253 S.W. 716

299 Mo. 671

STATE v. LINDERS.

No. 23717.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Rehearing Denied July 14, 1923.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Edward Z. Linders was convicted of burglary in the second degree, and he appeals. Affirmed.

Frumberg & Russell, of St. Louis (Conway Elder, of St. Louis, of counsel), for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.

DAVID E. BLAIR, P. J.

Defendant was convicted of the crime of burglary in the second degree in the circuit court of the city of St. Louis. The jury fixed his punishment at two years in the state penitentiary. After unavailing motions for new trial and in arrest of judgment, sentence was pronounced on the verdict, and defendant has appealed.

The state's evidence tended to prove that at about 7 o'clock, p. m., April 25, 1919, a Ford automobile belonging to one James Barry, or in his possession, was put in the garage at the home of said Barry in the city of St. Louis. The doors of the garage were closed. The automobile was gone therefrom at 7 o'clock the next morning, and the lock on the door of the garage leading to the alley was found to be broken. The door of the garage leading into the yard had been closed, but not locked the night before.

The following November, Barry and men who had driven the automobile for him identified portions of an automobile as belonging to the one taken out of possession of Barry the preceding April. The automobile was recovered from one Blavatt, and the defendant was arrested.

One Irvin Holzkamp testified that defendant employed him to steal the Barry auto-mobile and agreed to give him $50 to procure the same for him. Defendant pointed out the garage to him. That same night Holzkamp took Barry's automobile out of the garage and drove it to a garage on Bird avenue, which he had rented at the direction of the defendant.

The next day Holzkamp informed defendant that he had taken the automobile, and the defendant agreed to and did come over to the rented garage that night. Working together they removed the wheels and body and had them repainted and defendant filed off the motor number and put on a new number with dies. After this was done Holzkamp put a speedster body upon the chassis and drove the automobile for about three weeks and turned it over to defendant.

Defendant admitted that the particular automobile, claimed by Barry and identified by him and his men, was formerly owned by him and had previously been in his possession. He testified that he purchased it from one Joseph Browning in March, 1918, or more than a year before Barry's automobile was stolen; that said automobile was used by the Crown Margarine Company from March 21, 1918, to February, 1919, when defendant engaged in the tire and battery service business and needed the automobile for himself. He then took off the Crown Margarine body and replaced it with a roadster body which he purchased from the Gunn Transfer Company. Afterward defendant borrowed $250 from one Schultz, and he later turned over the automobile to Schultz, and Schultz sold it for more than enough to satisfy the debt and paid the surplus to the defendant. Blavatt, who had the automobile in question at the time of defendant's arrest, was the purchaser from Schultz. The purchase of a roadster body from Gunn Transfer Company, the borrowing of $250 from Schultz, and the delivery of the automobile to him, and the sale to Blavatt were corroborated by other witnesses.

The bill of sale from Browning to defendant described a Ford automobile and gave a motor number identical with the motor number of the automobile found in Blavatt's possession, and such motor number was different from the motor number of the Barry automobile. There was evidence both ways on the question of a change in the motor number on the automobile recovered.

Defendant denied that he took Holzkamp to Barry's garage and arranged with him to steal the automobile and denied all other facts testified to by Holzkamp which tended to connect him with the burglary of the garage and the larceny of the automobile. He admitted that Holzkamp had been in his employé, but claimed he had been discharged prior to the date the automobile was stolen.

Holzkamp admitted that he had stolen an automobile previously and had been paroled. He was under parole for stealing the Barry automobile when he testified against the defendant. He was somewhat hazy as to the location of the garage on Bird avenue, and could not remember where he purchased materials for making the speedster body.

The first assignment of error is that the indictment is insufficient to support the conviction of burglary because it does not describe the building which is the subject of burglary. The indictment was based on section 3297, R. S. 1919 (section 4520, R. S. 1909), which is as follows:

"Every person who shall be convicted of breaking and entering any building, the breaking and entering of which shall not be declared by any statute of this state to he burglary in the first degree, or any booth or tent, or any boat or vessel or railroad car in which there shall be at the time any human being or any goods, wares, merchandise or other valuable thing kept or deposited, with intent to steal or commit any felony therein, shall, on conviction, be adjudged guilty of burglary in the second degree."

A dwelling house of another, in which there is at the time some human being, is the only building which may be the subject of burglary in the first degree. Section 3291, R. S. 1919. All other burglaries are denounced by the statute as burglary in lesser degree. The indictment was in two counts. The first count was intended to charge defendant with burglary in the second degree and with larceny, and the second count charged defendant with receiving stolen property. The jury found defendant guilty of burglary in the second degree. The verdict was silent as to the larceny charge and the charge of receiving stolen property. Only the first count of the indictment need be noticed. With caption and formal parts Omitted, it reads as follows:

"The grand jurors of the state of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn, and charged, upon their oath present that Edward Z. Cinders on the 25th day of April, 1919, at the city of St. Louis aforesaid, into a certain shed, garage, and building of James Barry there situate and being feloniously and burglariously, forcibly did break and enter, with felonious intent then and there, and thereby feloniously and burglariously to steal, take, and carry away certain goods, wares, merchandise, other valuable things and personal property in the said shed, garage, and building, then and there kept and deposited and in the said shed, garage, and building one Ford automobile truck, of the value of $300, of the goods, wares, merchandise, other valuable things and personal property of the said James Barry in the said shed, garage and building, then and there being found then and there feloniously and burglariously did steal, take, and carry away, with the felonious intent then and there to permanently deprive the owner of the use thereof, and to convert the same to his own use; against the peace and dignity of the state."

The specific attack upon the indictment is that it does not charge that the building was one in which goods, wares, merchandise or other valuable things were at the time kept and deposited. In support of the sufficiency of the indictment, the Attorney General cites State v. Burns, 263 Mo. 593, 173 S. W. 1070; State v. Moss, 216 Mo. 436, 115 S. W. 1007. The informations `in those cases were in the same form as the indictment now before us, in so far as the clause descriptive of the building is concerned. However, in the Burns Case the defendant was convicted of larceny by means of burglary and acquitted of burglary. The information was upheld, but its sufficiency must be judged solely as to the charge of larceny. See State v. Moten, 276 Mo. loc. cit. 358, 207 S. W. 768.

In the Moss Case the information was held good as against an attack on the ground that it did not sufficiently charge the manner of the breaking and entry. In neither of the cases above referred to were the informations considered from the standpoint of the sufficiency of the description of the building; that is to say, whether they sufficiently charged that the buildings were those in which goods, wares, etc., were kept and deposited.

Appellant relies on the case of State v. Moten, supra. In that case the information, as to the description of the building, charged:

"Into a certain store, shop, and building of Herman Affolter there situate and being, feloniously and burglariously, forcibly did break and enter, with intent then and there, and thereby feloniously and burglariously, to steal, take, and carry away certain goods, wares, merchandise, and other valuable things and personal property in the said store, shop, and building."

It will be noted that the information in the Moten Case failed to use the words "kept and deposited," and it seems Judge Faris made a distinction because the words employed in the statute were not used in the information. He said:

"In order to charge burglary under section 4520, for the burglarious entry of a building in which goods, etc., are at the time kept and deposited, apt allegation must be made of the fact that goods, etc., are kept and deposited therein, together with the further averment that the breaking and entry was with the intent to steal the goods, etc., in the said building then and there being."

The indictment in the instant case is like the information in State v. Moss, supra, which Judge Faris cites as authority for the rule announced and immediately above quoted. Judge Faris also noted the fact that the words "kept `and deposited" were used in the...