State v. Meerchouse

• Decision Date: 31 January 1864
• Citation: 34 Mo. 344
• Parties: THE STATE OF MISSOURI, Defendant in Error, v. HENRY MEERCHOUSE, Plaintiff in Error.
• Court: Missouri Supreme Court

34 Mo. 344

THE STATE OF MISSOURI, Defendant in Error,

v.HENRY MEERCHOUSE, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1864.

Error to Osage Circuit Court.

J. E. Belch, for plaintiff in error.

Welch, (Attorney General,) for defendant in error.

BAY, Judge, delivered the opinion of the court.

At the May term, 1863, of the Osage Circuit Court, the defendant was indicted for burglary and larceny, and at the November term following tried and convicted. The usual motions for new trial and in arrest were made and overruled, and the case is brought here by writ of error. No objections have been urged to the instructions given on the part of the State. The defendant asked five instructions, and it is insisted by the Attorney General that all were given, while it is contended by defendant's counsel that his fifth instruction was refused. The difficulty grows out of the imperfect manner in which the record is made up. From all, however, that we can gather from the record, it appears that the instruction, as asked by defendant, was in the following words: “A dwelling-house is a house in which the occupier and his family usually reside at the time the burglary was charged to have been committed.”

The court gave the instruction with the following words added: “That is, the building was a dwelling-house, and not an out-house.”

During the argument of the case, and while defendant's counsel was addressing the jury, some altercation took place between the court and counsel as to the meaning and interpretation that should be given to the instruction, whereupon the court withdrew the instruction and gave the following in lieu of it:

“A dwelling-house is a house in which the occupier and his family usually reside, and in this case it is not necessary that any person should be actually in the house.”

We see in this no ground for reversing the judgment. The instruction, as finally given, is subject to no legal objection, and substantially contains the principle embraced in the instruction, as asked by defendant.

It has, however, been very ingeniously argued, that the building alleged to have been broken open was not a dwelling-house, and, therefore, the offence is not burglary. The proof upon this point shows that the premises belonged to one Frans Hutchmeyer. Hutchmeyer was a witness on the part of the State, and testified that he was the owner of a dwelling-house in Osage county; that he had lived in the house, but moved out of it some time in the spring of 1862, and went about four or five miles off to live with his brother, leaving a part of his furniture in the house; that he returned in three or four months; that at the time he left he locked the house up, and that during his absence no person had lived in it; that on his return to the house he discovered that it had been broken open and some things stolen.

As this indictment is for burglary in...