State v. Martin

• Decision Date: 31 October 1882
• Citation: 76 Mo. 337
• Parties: THE STATE v. MARTIN, Plaintiff in Error.
• Court: Missouri Supreme Court

76 Mo. 337

THE STATE

v.MARTIN, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1882.

Error to Jackson Criminal Court.--HON. HENRY P. WHITE Judge.

AFFIRMED.

M. Campbell for plaintiff in error.

D. H. McIntyre, Attorney General, for the State.

Burglary and larceny are, at common law, and under the statute, distinct offenses. The conviction of petit larceny was no bar to a subsequent prosecution for a burglary committed at the time of the larceny. Wilson v. State, 24 Conn. 57. Evidence necessary to convict of the charge of petit larceny would not sustain the charge of burglary, of which defendant was convicted, and the plea of autrefois convict is not a good plea in bar. State v. Warner, 14 Ind. 572, and note. Section 1301, Revised Statutes, provides that burglary and larceny may be charged in one count, or in separate counts of the same indictment. But it provides a separate and additional penalty for the larceny, going to show that they are distinct offenses, and not merely an aggravated burglary. State v. Barker, 64 Mo. 282; State v. Alexander, 56 Mo. 131; State v. Bruffey, 75 Mo. 389. A plea in bar is bad if the offenses charged in the two indictments be perfectly distinct in point of law, however closely connected in fact. Comm. v. Ruby, 12 Pick. 496. Section 1653, Revised Statutes, has no application to the case. It is intended to apply to offenses consisting of different degrees, and not to evidence of an independent offense necessarily brought out in the trial of that charged.

NORTON, J.

The defendant was indicted at the November term, 1881, in the Jackson county criminal court for burglary and larceny. The indictment contained but one count, which charged the commission of both burglary and larceny.

1. BURGLARY AND LARCENY: autrefois convict.

The defendant, in addition to his plea of not guilty, also put in a special plea in bar averring therein that on the 17th day of October, 1881, J. W. Childs, a justice of the peace within and for said county, issued his warrant for the arrest of defendant on a charge preferred for petit larceny; that he was arrested by virtue of said warrant, was tried and convicted of petit larceny of the same goods and chattels which he is charged with stealing in the said count of said indictment; that on the trial before said Childs all the facts of the transaction on which the indictment is founded, were brought out in evidence, but that said Childs nevertheless proceeded to try defendant for petit larceny, of which he was convicted and punishment assessed.

Upon the trial of the cause defendant was convicted of burglary, and his punishment assessed at five years' imprisonment in the penitentiary, the court having in effect instructed the jury that under the defendant's plea of autrefois convict they could not find defendant guilty of the larceny charged but might find him guilty of the burglary if they believed from the evidence that he committed it. From the judgment rendered defendant has prosecuted his writ of error, and the sole question presented by the record is whether the conviction of the defendant of petit larceny, as set forth in his special plea, was a bar to a subsequent prosecution for the burglary?

The solution of this question depends upon the fact as to whether the indictment charges but one or two distinct and separate offenses. If the larceny charged, is law, in so combined with the burglary as to make the charge simply an aggravated burglary, the plea relied upon is an effectual bar to the prosecution. But if the said burglary and larceny are each distinct offenses, the plea, while good as to the larceny, is bad as to the burglary, as the plea of autrefois convict must allege and the proof must show that the offense for which the defendant was convicted is the offense alleged in the indictment. 62 Mo. 592. That the burglary and larceny alleged to have been committed by defendant are separate offenses, has been decided by this court, in the case of State v. Alexander, 56 Mo. 131, where defendant was in the same count charged with burglary in the first degree and also with larceny. He was convicted of burglary in the second degree and also of larceny. The judgment was affirmed as to larceny but reversed as to the burglary on the sole ground that defendant was convicted of burglary in the second degree, while the indictment charged burglary in the first degree. They were thus...