State v. Madison

• Decision Date: 25 May 1915
• Docket Number: No. 18678.,18678.
• Citation: 177 S.W. 347
• Parties: STATE. v. MADISON.
• Court: Missouri Supreme Court

177 S.W. 347

STATE. v. MADISON.

No. 18678.

Supreme Court of Missouri, Division No. 2.

May 25, 1915.

Appeal from Circuit Court, Livingston County; Arch. B. Davis, Judge.

James Madison was convicted of burglary and grand larceny, and he appeals. Reversed, and defendant discharged.

Joseph D. Stewart and Nolan M. Chapman, both of Chillicothe, for appellant. John T. Barker, Atty. Gen. (A. R. McClanahan, of Kansas City, of counsel), for the State.

WALKER, J.

In an information filed by the prosecuting attorney of Livingston county the appellant was charged in one count with burglary and grand larceny under sections 4521 and 4535, R. S. 1909. Upon a trial he was convicted of both offenses, and his punishment assessed at 19 years in the penitentiary for the burglary and 2 years for the larceny. Unable to give bail, he is now undergoing punishment. A bank at Ludlow, in Livingston county, was burglarized and several thousand dollars stolen therefrom on the night of January 24, 1914. The next morning four men were apprehended some 9 or 10 miles southwest of Ludlow by a posse in search of the perpetrators of the crime. Upon being searched there was found in the possession of three of the men apprehended $2,359.50 in cash. $1,100 of this money was in new national bank bills which had been issued by the United States Treasury to the Ludlow Bank, but had not been signed by the officers of the latter. The officers of the Ludlow Bank identified the money as a part of that which had been stolen from it. The property found in the possession of the appellant consisted of $1.35, a comb, toothbrush, and a 38-caliber revolver. The four men were taken to Chillicothe and committed to the county jail. Informations were filed against them, and at the succeeding April term the three in whose possession the money had been found entered pleas of guilty, and were each sentenced to 21 years in the penitentiary. The appellant denied his guilt. He was placed upon his trial, and the principal evidence against him was that he had been seen, a few days preceding the burglary, at Chillicothe with one of the men who had pleaded guilty, and the day before the burglary he had been seen in company with the three men at Braymer, a station several miles distant from Ludlow, and that he was seen by a farmer early in the morning after the burglary emerging from a barn, where the four had evidently spent a portion of the preceding night, and also that he had been seen with the others a mile or two distant from where they were apprehended, but at the immediate time of this occurrence he was not with them. Aside from the proof of some minor circumstances corroborating the fact that he had been seen with the other three before and after the burglary, there was no material evidence of his guilt. The three who had been sentenced to the penitentiary testified that appellant did not participate in the commission of the offenses. Upon this testimony he was convicted, with the result stated.

I. Sufficiency of Evidence. It is insisted that the evidence is insufficient to support the verdict. To even the careful reviewer of the cold record the evidence may seem scarcely sufficient to sustain the verdict, which, in fact, considering the age, 58 years, of the accused,, is equivalent to a life sentence. The meager nature of the direct facts indicative of guilt, and the severity of the punishment, will suffice to authorize the interference of this court unless the record discloses some other substantial evidence, (either in the form of facts or circumstances, to support the verdict. It must be admitted that a mere written record cannot give the appellate court the force and effect of the evidence as it was submitted to the triers of the fact, and that the rule is well established that the weight and sufficiency of the evidence is for the jury. But where, as in this case, the direct proof is meager and not supported by a well-connected chain of circumstances, we are authorized in setting aside the verdict on the ground alone of the insufficiency of the evidence. State v. Bass, 251 Mo. 107, 157 S. W. 782; State v. Helton, 255 Mo. 170, 164 S. W. 457.

II. Ownership of Building. It is contended that the ownership of the building charged to have-been burglarized is not sufficiently alleged in the information. Note the language of same:

"That James Madison * * * did then and there into a certain bank building occupied by the Farmers' National Bank at Ludlow, said * * * bank being duly and legally incorporated under the laws of the United States and doing a banking business and maintaining a banking house at said town of Ludlow * * * feloniously and burglariously break into and enter," etc.

The sufficiency of the remainder of the information not being questioned, it is omitted. In determining whether the foregoing is a sufficient allegation of ownership the reasons for the rule requiring such an allegation must be taken Into consideration. They are well stated in a South Carolina case (State v. Trapp, 17 S. C. 467, 43 Am. Rep. 614), as I follows: First, to show that the building burglarized was not the property of the accused, inasmuch as the breaking into and entry of one's own building is not an offense if at the time he was in possession of same or it was under his control; and second, that the property may be so identified as to protect the accused from a subsequent prosecution for the same offense. The allegation here made as to ownership fully meets these requirements, and we hold it to be sufficient. In thus holding, we are not unmindful of the dictum in State v. Kelley, 206 Mo. loc. cit. 693, 105 S. W. 606, 12 Ann. Cas. 681, which cites, in support of the necessity of the allegation in regard to ownership, State v. Horned, 178 Mo. loc. cit. 61, 76 S. W. 953, in which the information alleged that the building burglarized was "the depot" of a certain railway company, which seems to us, without controversy, to have been a sufficient allegation of ownership. However, the real point involved was not as to the ownership of the building, but the failure of the information to allege that the rail way company was either a firm or a corporation; and in State v. Jones, 168 Mo. loc. cit. 402, 68 S. W. 506, cited in support of the dictum in the Kelley Case, the real point involved was not as to the ownership of the building but, as in the Horned Case, the failure to allege the corporate character, or otherwise, of the hardware company occupying the building. It is true the court held in each of these cases that it was necessary to allege and prove the ownership of the building charged to have been burglarized, as well as the ownership of the goods charged to have been stolen therefrom, but these were incidental to the ruling as to the necessity of averring the character of the company either as a firm or a corporation, as ruled in the later case of State v. Clark, 223 Mo. loc. cit. 51, 122 S. W. 665, 18 Ann. Cas. 1120. We have reviewed the foregoing cases, not to question the correctness of the ruling that the ownership of the building burglarized must be pleaded, but to emphasize the fact .that the ruling is not based upon the errors assigned in either of said cases, and hence dicta, and, incidentally, to strengthen the conclusion that such an allegation of ownership as is supported by the rules stated in the South Carolina case (State v. Trapp, supra) is all that is required under the trite, but what should always be held to be the true, maxim that when the reason ceases the rule ceases.

Another reason in support of the conclusion here reached is that the gist of the crime of burglary consists in the breaking into and entering of a building with felonious intent. This being proved, the crime is rendered complete, and it is therefore not...