State v. Mann

• Decision Date: 04 December 1919
• Docket Number: No. 21855.,21855.
• Citation: 217 S.W. 67
• Parties: STATE v. MANN.
• Court: Missouri Supreme Court

217 S.W. 67

STATE v. MANN.

No. 21855.

Supreme Court of Missouri, Division No. 2.

December 4, 1919.

Appeal from Circuit Court, Reynolds County; E. M. Dearing, Judge.

Oran Mann was convicted of burglary, and appeals. Affirmed.

Appellant was charged with burglary for that on the 5th day of November, 1918, he feloniously and burglariously broke into and entered the store belonging to one R. A. Duncan, in Reynolds county, Mo., with intent to steal, take, and carry away divers goods, wares, and merchandise then and there kept for sale and deposited. Defendant waived formal arraignment and entered a plea of not guilty. He was found guilty by a jury, and his punishment assessed at imprisonment in the penitentiary for two years. From the judgment rendered upon the verdict aforesaid, an appeal was taken to this court.

State's Evidence.

The evidence of the state at the trial was substantially as follows: R. A. Duncan was the owner of a sawmill and store at the little station of Hadley, in Reynolds county, Mo. The store was situated a short distance north of Duncan's residence on the right of way of the Missouri Southern Railway. Duncan kept inside of the store dry goods, shoes, and other things for sale. On the morning of November 5, 1918, Duncan says he went to the town of Garwood to vote, and returned to Hadley thereafter, where he remained the rest of the day. On the evening of the day aforesaid Duncan and a Mr. Usery were in Duncan's store on guard. Some one had been entering the store prior to the evening in question, and they were desirous of catching the person. About 7 p. m. of said day some one came to the door of the store, flashed a light a couple of times, after which he got inside by unlocking a padlock and mortise lock with which the door had been locked. They captured the intruder, who turned out to be this appellant. In his right-hand coat pocket they found a key to the padlock. Shortly thereafter, another key was found, made out of a tenpenny nail, near the door, through which entrance had been effected.

Duncan's evidence, supra, was corroborated by that of Usery, who further testified that the prisoner, when they asked him for the other key, said:

"I ain't got no other key. I'll tell you right now, when you find the other key, it won't be a manufactured key; it won't be a patent key; there's another man to the back of this that give me the key."

The key made out of the tenpenny nail was tried on the door, and it turned the lock. Usery denied having a conversation with either appellant's mother or sister in which it is claimed he said the door was unlocked and open and appellant walked in.

Urie Webb, who appeared upon the scene about 8 p. m. said he found the key last above mentioned on the floor just in front and on the outside of the store door.

Newt Moore met appellant after dark about 115 yards below the store. They met on the railroad track, and walked to the store together. Moore left appellant standing near the bridge or platform that was within eight or ten feet from the store. Appellant asked Moore what he was doing up there that time of night, and Moore told him he was on a cattle deal with Foster, and was expecting to see Mr. Duncan about it. Seeing no light in the store, Moore said he guessed that Duncan had gone to supper, and appellant answered him, saying "Yes." Upon Moore's further inquiry as to whether Duncan usually came back after supper, appellant answered "No." Moore left appellant standing near the bridge or platform that was within eight or ten feet of the store, and saw him no more that night.

Prior to the 5th of November, 1918, appellant had occasionally fired Duncan's mill, but on the day aforesaid Urie Webb fired up at 7:30 a. m. Webb filled the boiler with water and when he left the mill there was about 30 pounds of steam in the boiler. He estimated that said steam would last not to exceed five hours.

R. A. Duncan and Urie Webb testified that appellant's reputation for honesty was good prior to the present difficulty.

Defendant's Evidence.

The evidence in behalf of appellant was substantially as follows: He was 21 years old and lived about one-eighth of a mile from Duncan's store with his parents. A short time prior to the 5th of November, 1918, he fired at the mill a few days at a time. He fired the mill on Monday preceding the 5th of November, but did not fire the mill on the 5th. The latter was fired that morning, but did not run, as no work was done there that day. That evening appellant says he started to the store to see how things were at the mill; the mill being 30 or 40 yards from the store; that he heard some one coming up the railroad, crossed over, and found Mr. Moore there. They walked a little way together, when Moore turned off, and appellant went to the mill to stop the sound of the mill whistle, which was making a moaning sound on account of the low steam pressure. It was then between 6 and 7 p. m. Appellant stayed at the mill five or ten minutes. When he left the mill, he says he saw a light in the store and went towards it. When he got to the store bridge, he heard a noise like the rustling of paper in the store, walked up to the door, pressed on the thumb latch, and it opened. He went inside, and, it being dark, he flashed his light over the room. He said he had taken one step when the persons in the room raised up, threw a light on him, and commanded him to throw up his hands; that they searched him for a gun, and then searched him for keys, finding a padlock key he had in his pocket; that he told them he had no other key; that the first time he saw the other key was when it was shown to him two or three hours after he was apprehended; that he did not state that when the other key was found it would not be a manufactured or patent key. He said that when he entered the store he supposed some one was in there transacting the usual business or getting the election returns.

On cross-examination appellant said that he went to the mill to see about the whistling, and to see if they intended to run the next day; that he heard the mill whistle while he was with Mr. Moore.

John Brown, who lived close to the sawmill, testified that on the evening in question he heard the mill whistle about 6:30 p. m.; that he had often heard the mill whistle of evenings after the mill had quit running; that the whistling was caused by the valve dropping down; that at the store appellant asked Brown, in the presence of Duncan and Usery, after appellant's apprehension, if he heard the whistle shut oft; and that, on Brown's answering that he heard it, appellant said, "I shut it off."

Marvin Pratt testified that there were a few houses north of Duncan's store; that about six months before the 5th of November, 1918, he was at the logyard immediately west of the sawmill, and about 30 yards northeast of the store; that he saw a light in the store and went some distance toward it before he discovered...