State v. McGee

• Decision Date: 19 May 1908
• Citation: 110 S.W. 699,212 Mo. 95
• Parties: STATE v. McGEE et al.
• Court: Missouri Supreme Court

110 S.W. 699

212 Mo. 95

STATE v. McGEE et al.

Supreme Court of Missouri, Division No. 2.

May 19, 1908.

1. LARCENY—EVIDENCE—SUFFICIENCY TO SUPPORT VERDICT.

In a prosecution for stealing chickens, evidence held to justify a verdict of guilty.

2. CRIMINAL LAW — QUESTIONS FOR JURY— PUNISHMENT.

An instruction that if defendant should be found guilty, and also to be under the age of 18 years, he should be committed to the training school, and not to jail or the penitentiary, was erroneous as submitting to the jury a matter that was for the determination of the court.

3. SAME—APPEAL—HARMLESS ERROR.

An instruction that if defendant should be found guilty, and also to be under the age of 18 years, he should be committed to the training school, and not to the jail or penitentiary, while erroneous, was not prejudicial to defendant.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Eugene McGee and James McGee were convicted of stealing, and they appeal. Affirmed.

James C. Shaner, for appellants. The Attorney General and N. T. Gentry, for the State.

BURGESS, J.

On April 16, 1907, the assistant circuit attorney of the city of St. Louis filed an information, duly verified, in the circuit court of said city, charging the defendants with stealing, in the nighttime, six Plymouth Rock chickens and two white ducks, of the value of $7, all the personal property of Archie Perkins. The defendants, on May 15, 1907, were jointly tried, and both were convicted, the punishment being assessed at 2 years in the penitentiary. The court, being satisfied that defendant Eugene McGee was under 18 years of age, changed his punishment to 3 years in the training school for boys. After filing a formal motion for a new trial, which was denied, the defendants appealed.

The state's evidence tended to prove that prosecuting witness, Arch Perkins, resided, on the 3d day of March, 1907, at No. 1612 Glasgow avenue, in the city of St. Louis. In the rear of Perkins' house there was an alley, and the two defendants, who were brothers, aged 20 and 17, respectively, resided, with their father and uncle, a few houses from Perkins, and the back premises of both houses opened on said alley. In the rear of Perkins' residence there was a small yard, and a few feet from the house in said back yard there was a coop, containing Perkins' chickens. On Saturday night, March 3d, Perkins fastened five hens, a rooster, and three ducks in said coop, and locked the door. All of said fowls belonged to Perkins, and one was a pet chicken. The next morning, at 7 o'clock, when Perkins went out to feed his fowls, he found that they were all gone, except one duck. He also found the door of the chicken coop open, and saw some burnt matches and cigarette papers lying near the chicken house, also a lot of feathers. Out in the alley Perkins also found feathers, which were strung along down to the stable in the rear of the defendants' place, and he found blood on the rocks in the alley near the stable. The feathers were of the same color as the chickens which Perkins owned, Dominecker chicken feathers. He also found two chicken heads on a pile of manure in the stable lot at the rear of the defendants' place. These chicken heads were bloody, and showed that the chickens had recently been killed. That afternoon Perkins was working in his stable, and he heard the two defendants talking in their stable, which adjoined the Perkins' stable. The defendants were eating a dish of cooked chicken and drinking beer in the stable. Perkins peeped through a crack in the wall, and saw both defendants in the act of eating and drinking. He heard a younger brother of the two defendants say: "Jim, mamma said send her a quarter or another one of those chickens." The defendant Eugene McGee threw a beer faucet at his little brother, and called him a little "snitch," saying: "He has given the whole thing away. I will make Claycamp whip him for snitching." The defendant James McGee then said: "Oh, Eugene,...