State v. Moss

• Decision Date: 02 February 1909
• Citation: 216 Mo. 436,115 S.W. 1007
• Parties: STATE v. MOSS.
• Court: Missouri Supreme Court

115 S.W. 1007

216 Mo. 436

STATE v. MOSS.

Supreme Court of Missouri, Division No. 2.

February 2, 1909.

1. INDICTMENT AND INFORMATION (§ 110)— LANGUAGE OF STATUTE.

An indictment stating every material fact required by Rev. St. 1899, § 1886 (Ann. St. 1906, p. 1293), to constitute burglary in the second degree, is sufficient, without alleging the manner of the breaking; such statute not attempting to define the kind of breaking necessary to constitute the offense.

2. CRIMINAL LAW (§ 1169)—HARMLESS ERROR—EVIDENCE.

Refusal to exclude wholly immaterial evidence is harmless.

3. CRIMINAL LAW (§ 1173)—HARMLESS ERROR—INSTRUCTIONS.

Failure to instruct on petit larceny was harmless, defendant having been convicted of burglary and larceny from the burglarized house, and larceny from a burglarized house being grand larceny.

Appeal from St. Louis Circuit Court; Geo. H. Williams, Judge.

Clarence Moss appeals from a conviction. Affirmed.

Jas. M. Rollins, for appellant. Herbert S. Hadley, Atty. Gen., and F. G. Ferris, Asst. Atty. Gen., for the State.

GANTT, P. J.

This is an appeal from a judgment of the circuit court of the city of St. Louis sentencing the defendant to the penitentiary for burglary in the second degree for three years and for grand larceny for a term of two years. After ineffectual motions for a new trial and in arrest of judgment, the defendant has appealed to this court.

As the information is challenged, we reproduce the substance thereof, to wit: "That Gilbert Bailey and Clarence Moss, on the twenty-first day of December, 1907, at the city of St. Louis, into a certain store, shop, and building of Louis Haas there situate and being, feloniously and burglariously forcibly did break and enter, with intent then and there and thereby feloniously and burglariously to steal, take, and carry away certain goods, wares, merchandise, other valuable things, and personal property in the said store, shop, and building then and there kept and deposited, and in said store, shop, and building two `cravenette' overcoats, two pairs of trousers, four pairs men's kid gloves, and one silk muffler, all of the value of twenty dollars, of the goods, wares, merchandise, other valuable things, and personal property of the said Louis Haas in the said store, shop, and building then and there being found, then and there feloniously and burglariously did steal, take, and carry away, with the intent then and there to deprive the owner of the use thereof and to convert the same to his own use, against the peace and dignity of the state." The defendants were duly arraigned on the 22d of January, 1908, and each pleaded not guilty. The case was then continued to the February term, and on the 4th of February, 1908, a severance was granted, and the defendant Gilbert Bailey withdrew his plea of not guilty, and pleaded guilty of burglary in the second degree, and sentence thereon was deferred. On the 5th of February, the defendant Moss was put upon his trial, and found guilty as above stated.

The evidence on the part of the state tended to prove that Louis Haas on the 20th and 21st days of December, 1907, was engaged in business at No. 1310 Olive street, where he had a small stock of gents' furnishing goods and clothing. No. 1310 Olive street was an ordinary storeroom, having a front entrance and rear entrance by means of doors. In the front there were show windows. About 9 o'clock on the evening of the 20th of December, 1907, Haas closed his store locking and securely fastening the doors and windows. In the show windows at that time, among other goods, were two cravenette overcoats, one black and the other gray, two pairs of trousers, four pairs of gloves, and a silk muffler, all the property of said Haas. About 15 minutes past 1 o'clock that night, as Officers Shenck and O'Brien, who were on duty as plain-clothes policemen, were passing north on the east side of Fourteenth street, between Pine and Olive, they saw the defendant, Clarence Moss, and Gilbert Bailey, both negroes, approaching them on the street. Shenck had known the defendant Moss about ten years and O'Brien had known him for a year or more. As Moss and Bailey approached the officers, the latter noticed that Bailey was carrying a bundle under his arm and Moss, the defendant, had something under his coat. When ...