State v. Lynn

• Decision Date: 11 December 1929
• Docket Number: 29961
• Citation: 23 S.W.2d 139
• Parties: STATE v. LYNN
• Court: Missouri Supreme Court

23 S.W.2d 139

STATE v. LYNN

No. 29961

Supreme Court of Missouri, Second Division

December 11, 1929

Hammett & Holman, of Moberly, for appellant.

Stratton Shartel, Atty. Gen., and Carl Otto, Asst. Atty. Gen., for the State.

DAVIS and COOLEY, CC., concur.

OPINION

HENWOOD, C.

An information was filed in the circuit court of Randolph county, at Huntsville, by which the defendant was charged with burglary in the second degree; that is, with breaking into and entering the chicken house of one J. W. Baker, with the intent to steal the chickens kept therein. The venue was changed to the circuit court of Randolph county, at Moberly where he was found guilty, and his punishment assessed at imprisonment in the penitentiary for two years. He was sentenced accordingly, and in due course appealed.

According to the testimony of J. W. Baker, he resided at 317 Johnson street in the city of Moberly, in Randolph county, and, at the rear of his premises and abutting an alley, had a small chicken house, 'twelve by eight,' in which he kept his chickens and also his coal. A partition, made of boards and slats, divided the chicken house into equal parts, and separated the coal from the chicken roosts. There was an opening or 'passway,' about three feet wide, in the partition. The chicken house had double doors on the front side, one affording an entrance to the chicken roosts and the other to the coal. A coal door, 'about two foot square,' was the only other opening in the chicken house. There were no locks on the double doors. One Saturday evening in April, 1928, about 7 o'clock, he nailed a board across the double doors. At that time, there were sixteen chickens on the roosts in the chicken house. Later that evening, about 11 o'clock, he discovered that the board had been pulled off of the double doors and that one of the doors, the entrance to the coal, was open. Upon entering the chicken house through the open door, he found the defendant, whom he had known for about seven years, 'standing in front of the roosts, lighting a match and holding it up to the chickens.' He said, to the defendant: 'Louis Lynn what are you doing in here? What do you want?' The defendant 'let on like he was drunk; he rared back and let on like he was full, just as though he didn't know where he was at,' and said: 'What did you say? What do you want?' He (Baker) said: 'Come on out of her, Louis.' The defendant followed him out of the chicken house and then fled through the alley. A few minutes thereafter he saw the defendant in the Star Pool Hall. He reported the occurrence to a police officer (Ed Buckner), and the defendant was arrested in the pool hall.

Baker's testimony was corroborated by the police officer, as to the time and place of the defendant's arrest.

The defendant's father and son, 12 years of age, were the only witnesses in his behalf. They testified that they went to Baker's premises, with the defendant's counsel, Mr. Hammett, and inspected Baker's chicken house. They said that one of the double doors, the one which formed the entrance to the chicken roosts, was about six inches wider and about nine inches higher than the other; and that there were two rear doors or windows, 'all of 2 feet square,' in the chicken house. In other particulars, their description of the chicken house was substantially the same as that given by Baker.

I. The sole complaint of the defendant concerns alleged improper and prejudicial remarks of the prosecuting attorney in his closing argument to the jury. In this connection, the record discloses the following proceedings:

'By Mr. Walden (referring to the instructions). The court said if you find he did those things then you must find him guilty and you should find him guilty.

'Mr. Hammett. We object, for the reason the information does not charge he broke into a coal house -- it was a chicken house; it leads the jury to believe he might be convicted if he broke into a coal house.

'The Court. Objection overruled. I understood the attorney corrected the first statement.

'And to the action of the court in so ruling, the defendant, by his counsel, then and there at the time duly excepted and saved his exceptions.

'Mr. Walden. It is always when Judge Hammett is on the other side that I always learn something. I wondered how Judge Hammett would get before you the fact that this defendant had a little son.

'Mr. Hammett. I believe that is improper argument.

'The Court. Overruled.

'And to the action of the court in so ruling, the defendant, by his counsel, then and there at the time duly excepted and saved his exceptions.

'Mr. Walden. I wondered how he would do that. Now, in order to do that I surmised he took him out to the chicken house and showed it to him to make him a witness.

'Mr. Hammett. We object to that argument. We had a perfect right to let him inspect this house.

'The Court. Stay within the record; that is not in the record, and it is improper.

'Mr. Walden. Anyhow, he was put on the stand for that purpose, and it was a clever move on the part of the defense.

'Mr. Hammett. We object to that; that does not tend to prove anything in the case; that is not arguing the case.

'The Court. Overruled. I suppose he is trying to answer some of your argument.

'And to the action of the court in so ruling, the defendant, by his counsel, then and there at the time duly excepted and saved his exceptions.

'Mr. Walden. It was for the purpose, gentlemen of the jury, of gaining your sympathy in this case. It was for the purpose of getting your influence --

'Mr. Hammett (interrupting). We object to that, and we ask that the jury be discharged. We think that is improper.

'The Court. Overruled.

'And to the action of the court in so ruling, the defendant, by his counsel, then and there at the time duly excepted and saved his exceptions.

'Mr. Walden. I think I have the right to draw my inference. Anyhow, that is not the real issue in the case, because under the instructions there is not a thing said about acquitting the defendant if he had a boy or had a family. If that were the law of this land then anybody who had a son would have a free license to rob anybody he saw fit to rob. Of course, I am sorry for the boy; and you know that the boy is not living with Louis Lynn -- he is living with his grandfather. What would be the effect upon this boy and other boys --

'Mr. Hammett (interrupting). We object to that argument.

'The Court. Yes, I think that last inference is improper.

'Mr. Walden. We submit, gentlemen of the jury, that under the instructions in this case, under the law and the facts here, that this defendant should be convicted. We submit that is true because, gentlemen of the jury, property rights must be protected.

'Mr. Hammett. I object. I think that is improper. It is too general.

'The Court. Overruled.

'And to the action of the court in so ruling, the defendant, by his counsel, then and there at the time duly excepted and saved his exceptions.

'Mr. Walden. If, gentlemen of the jury, this crime can go unpunished, then any other crime of like nature would go unpunished.

'Mr. Hammett. We object. We think that is improper; it is too general.

'The Court. Sustained to the last statement.

'Mr. Walden. And we submit, in order to secure property rights, that punishment should be inflicted in this case.

'Mr. Hammett. I think that is improper; we object to that. This defendant is not to be tried for any other offense.

'The Court. I will sustain objection to other offenses. He has the right to argue this one and argue the evidence here.

'Mr. Walden. * * * What would be necessary to prove that has not been proven? How much stronger could you make it than it has been made, and how much weaker can the defendant's case be than it was today? No witness took the stand to show that Louis Lynn wasn't there, because he was here, younder or there -- nobody said that -- not any testimony as to where he was that night.

...