State v. McHenry

Decision Date23 December 1918
Docket NumberNo. 20994.,20994.
Citation207 S.W. 808
PartiesSTATE v. McHENRY.
CourtMissouri Supreme Court

Appeal from Circuit Court, Scotland County; N. M. Pettingill, Judge.

Charles McHenry was convicted of burglary and larceny, and he appeals. Reversed and remanded.

Claude C. Fogle, of Memphis, for appellant.

Frank W. McAllister, Atty. Gen., and S. E. Skelley, Asst. Atty. Gen., for the State.

WHITE, C.

The appeal is from a judgment of the circuit court of Scotland county wherein the defendant was convicted of burglary and larceny. The only error complained of is the instruction given by the trial court authorizing a general verdict and the verdict returned pursuant to that instruction.

The defendant was charged with burglary and also with larceny in one count of the information, as may be done under section 4528, R. S. 1909.

There was evidence tending to show that the defendant committed the offense of burglary by breaking into a store, and also larceny by taking and carrying away certain hardware therefrom. The trial court instructed the jury that, if they should find the defendant "did wrongfully and forcibly break into the store with intent to steal," etc., they should find him guilty of burglary in the second degree and assess his punishment at imprisonment in the penitentiary for a term of not less than two years. The court gave another instruction directing the jury that, if they should find the defendant unlawfully and wrongfully broke into the store, as explained in the preceding instruction, and after breaking into it unlawfully and wrongfully took and carried away certain property, they should find the defendant guilty of grand larceny and assess his punishment at a term in the penitentiary, in addition to the term for burglary, of not less than two nor more than five years.

The court then furnished the jury with a form of verdict which was general and did not attempt to separate the two offenses. The verdict in pursuance of that instruction was as follows:

"We, the jury, find the defendant guilty and assess his punishment at two years in the penitentiary."

It always has been held in this state that, where a defendant is charged in the indictment with two or more different and distinct offenses, a general verdict, without designating of which offense he is found guilty, cannot stand. State v. Standley, 232 Mo. 23, 132 S. W. 1122; State v. Daubert, 42 Mo. 242; State v. Rowe, 142 Mo. 439, 44 S. W. 266; State v. Pace, 269 Mo. 681, 192 S. W. 428; State v. Conway, 241 Mo. 271, 145 S. W. 441.

Section 4528 permits the two offenses of burglary and larceny to be charged in the same indictment, either in one...

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21 cases
  • State v. Denison
    • United States
    • Missouri Supreme Court
    • March 6, 1944
    ... ... State v ... Bush, 119 S.W.2d 265, 342 Mo. 959; State v ... Martin, 56 S.W.2d 137. (6) Assignment Number Fourteen of ... appellant's motion for new trial is not well taken ... State v. Hecox, 83 Mo. 531; State v ... Hutchinson, 111 Mo. 257; State v. McHenry, 207 ... S.W. 808. (7) Instruction 3 was a proper instruction, ... therefore, appellant's assignment Number Fifteen was not ... well taken. State v. Culbertson, 74 S.W.2d 375. (8) ... Appellant's assignment Number Seventeen alleging that the ... court erred in giving Instruction Number Five ... ...
  • State v. Williams
    • United States
    • Missouri Supreme Court
    • October 13, 1947
    ... ... 4150, 4440, 4445, 4448, R.S. 1939; ... State v. Mason, 98 S.W.2d 574, 339 Mo. 878, 879; ... State v. Hampton, 172 S.W.2d 1; State v ... Tipton, 271 S.W. 55; State v. Hurt, 149 S.W.2d ... 61; State v. Oliver, 184 S.W.2d 1007; State v ... Rowe, 44 S.W. 266, 142 Mo. 439; State v ... McHenry, 207 S.W. 808; State v. Stewart, 44 ... S.W.2d 100; State v. Meadows, 55 S.W.2d 959, 331 Mo ... 533; State v. Highley, 102 S.W.2d 563; State v ... Barbour, 151 S.W.2d 1105, 347 Mo. 1033; State v ... Purl, 183 S.W.2d 903; State v. Kenyon, 126 ... S.W.2d 245, 343 Mo. 1168. (2) The court did ... ...
  • State v. Myers
    • United States
    • Missouri Supreme Court
    • July 6, 1943
    ...the jury did not make separate findings as to each charge, and separately assess the punishment, the verdict cannot stand. [State v. McHenry, (Mo.) 207 S.W. 808, and cases cited.] "The verdict and judgment are part the record proper which it is our duty to examine for error, whether or not ......
  • State v. Stewart
    • United States
    • Missouri Supreme Court
    • December 1, 1931
    ...in the case of removal of a glass out of a door or of the bursting or breaking of a bolt or lock. (5) We have conceded that under State v. McHenry, 207 S.W. 808, and v. Hedgpeth, 278 S.W. 740, that the jury should have found whether the defendant was guilty of burglary as charged in the inf......
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