State v. McGuire

• Decision Date: 31 January 1906
• Citation: 193 Mo. 215,91 S.W. 939
• Parties: STATE v. McGUIRE.
• Court: Missouri Supreme Court

91 S.W. 939

193 Mo. 215

STATE v. McGUIRE.

Supreme Court of Missouri, Division No. 2.

January 31, 1906.

1. BURGLARY — INDICTMENT—DESCRIPTION OF PROPERTY.

Where chickens alleged to have been stolen were fastened in the henhouse at night, they were kept therein, within Rev. St. 1899, § 1886, providing that the entry of any house in the nighttime in which goods, wares, and merchandise, or other valuable thing, is kept or deposited shall constitute burglary, so that an information alleging that defendant burglariously broke and entered the chicken house with intent to steal certain "goods, wares, and merchandise, or valuable thing, kept and deposited therein," was not objectionable for failure to allege and describe the property so kept or deposited.

2. SAME—OWNERSHIP OF BUILDING.

In a prosecution for burglary in entering a chicken house, evidence that prosecutor was in actual possession of the house as alleged at the time the burglary was committed was sufficient to sustain an allegation that prosecutor was the owner of the house.

3. SAME—LARCENY.

In a prosecution for burglary, evidence held sufficient to establish the commission of a larceny in the building burglarized.

4. CRIMINAL LAW — INSTRUCTIONS — DEFINITION OF TERMS.

In a criminal prosecution, the court was not required to define the terms "goods, wares, and merchandise," and "other valuable thing, kept and deposited"; such terms being terms of ordinary understanding.

5. SAME—WEIGHT OF EVIDENCE.

Where, in a criminal prosecution, there is some evidence to sustain a conviction, the weight of the evidence is for the jury.

6. BURGLARY—EVIDENCE.

In a prosecution for burglary, evidence held sufficient to sustain a conviction.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

Jack McGuire was convicted of burglary, and he appeals. Affirmed.

Clarence A. Barnes, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, P. J.

On an information presented by the prosecuting attorney within and for Audrain county, charging the defendant with burglary in the second degree in burglariously breaking into and entering a chicken house, being a building belonging to and the property of another, to wit, one Lee Stewart, with the intent and purpose to steal certain goods, wares, and merchandise and other valuable things kept and deposited therein, defendant was, at the January term, 1905, of the circuit court of said county, convicted of the offense charged, and his punishment fixed at three years' imprisonment in the penitentiary. After unsuccessful motions for a new trial and in arrest, defendant appeals.

The salient facts are about as follows: Lee Stewart, whose chicken house defendant is charged with burglarizing, lived at the time on a farm about 8 miles east of Mexico. He owned 2 turkey hens and 67 chickens, which he kept in a chicken house situated on his farm near his dwelling. On Sunday evening, January 8, 1905, these turkeys and chickens were put into the chicken house and the outside door securely fastened with a button. A light snow fell after 10 o'clock that night. On going out in the yard Monday morning, Mr. and Mrs. Stewart discovered the chicken house door unfastened and open and that 1 turkey hen and 25 of their chickens were gone. The chickens would have weighed, on an average, 5½ pounds each, and the turkey hen would have weighed about 15 pounds. Stewart also discovered the tracks of a man leading from the chicken house across the yard and down the public road. The tracks indicated that the man had made three trips to the chicken house, and they led back to a point on the road where it appeared a buggy and two horses had been standing in the snow. These tracks came from the direction of Mexico and led back in the same direction. Both horses had been shod, so that Stewart and his son had no trouble in tracking them all the way to Mexico. On reaching that town, Stewart went to the livery stable of A. M. Barnes, where he was shown a buggy which defendant had used the night before. It was a two-horse buggy, and had in it some chicken feathers and other chicken litter. Defendant had hired this buggy and team at 9 o'clock Sunday night, saying at the time that he wanted to drive a girl to the country after church and that he would be gone all night. He returned to the livery stable about 9 o'clock Monday morning. About 8:30 o'clock the same morning, defendant appeared at the poultry house of Sam Wayne, in Mexico, to whom he sold one turkey hen weighing 15 pounds, and 132 pounds of chickens. Wayne testified that the defendant carried the fowls that he purchased from him in two sacks, and some under the buggy seat; that the turkey and chickens were at once killed and picked, and in about an hour Mr. Stewart came in and inquired for his fowls. The defendant's evidence tended to show that Stewart, in a conversation had with witness Edward Rodhouse, said that the chicken thief drove in a wagon, which he afterwards called a rig; that one inch of snow fell some time between 7 o'clock Sunday night and 7 o'clock Monday morning; and that the thermometer that night was 11 degrees above zero.

The information, leaving out the formal parts, is as follows: "Now comes John D. Orear, prosecuting attorney within and for Audrain county, Missouri, upon his official oath and upon his information, knowledge, and belief, and informs the court that at the county of Audrain and state of Missouri on the 8th day of January, 1905, one Jack McGuire did then and there feloniously and burglariously break into and enter in the nighttime a chicken house, being a building belonging to and the property of another, to wit, one Lee Stewart, there situate, by unfastening the latch of an outer door and forcibly pushing said door open—said building being one in which there was at that time goods, wares, and merchandise and other valuable things kept and deposited—with the intent the goods, wares, and merchandise and other valuable things there kept and deposited to steal, take, and carry away, against the peace and dignity of the state." At the close of all the evidence defendant asked instructions in the nature of demurrers to the evidence, which were refused by the court, and defendant saved his exceptions.

The following instructions were given by the court: "(1) If the jury believe from the evidence in the cause and beyond a reasonable doubt that the defendant, on or about the 8th day of January, 1905, at the county of Audrain and state of Missouri, broke into and entered in the nighttime the chicken house of one Lee Stewart, by forcibly unfastening the latch of the outer door of said chicken house building and forcibly pushing said door open, and that there were at said time in said chicken house building goods, wares, and merchandise, and other valuable things, to wit, chickens and turkeys, kept and deposited, and further believe from the evidence and beyond a reasonable doubt that the defendant did so break into and enter said chicken house building with the intent of stealing, taking, and carrying away, converting to his own use, and of depriving the owner permanently of his property, and against the owner's consent, and without any honest claim of right thereto, any of the chickens and turkeys then in said chicken house and belonging to said Lee Stewart, then the jury will find the defendant guilty of burglary in the second degree, and will assess his punishment at imprisonment in the penitentiary for a term of years not less than three years. (2) You are...