State v. Moten

Decision Date23 December 1918
Docket NumberNo. 21065.,21065.
PartiesSTATE v. MOTEN.
CourtMissouri Supreme Court

Appeal from Circuit Court, Moniteau County; J. G. Slate, Judge.

Dick Moten was convicted of burglary, and he appeals, having moved in arrest of judgment for insufficiency of the information. Judgment reversed, and case remanded for new trial.

Defendant, jointly charged with one Joe Short, by information with the crime of burglary and larceny, took a severance, and upon his trial was found guilty of burglary alone, and his punishment assessed by the jury at imprisonment in the penitentiary for a term of two years. After the conventional procedure, he has appealed.

The facts of the case, while few and simple, are in no way necessary to an understanding of the legal points involved. But for reasons which will become apparent, the information upon which the conviction was had is important. This information, omitting caption and other conventional parts in no wise attacked, reads thus:

"S. C. Gill, prosecuting attorney within and for Moniteau county, Mo., upon his oath of office and upon his information and belief, informs the court that Joe Short and Dick Moten, on or about the sixth day of August, 1917, at the county of Moniteau, and state of Missouri, into a certain store, shop and building of Herman Affolter 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, and other valuable things and personal property in the said store, shop and building, twenty bottles of soda water of the value of one dollar, and two dollars, all of the value of three dollars, of the goods, wares, merchandise, other valuable things and personal property of the said Herman Affolter in the said store, shop and building then and there being found, then and there feloniously and burglariously did steal and take and carry away, with the intent then and there to deprive the owner Herman Affolter of the use thereof and to convert the same to his own use; against the peace and dignity of the state."

After defendant's conviction, he filed a motion in arrest attacking the sufficiency of the above information. He contents himself with this sole point, and so shall we.

L. F. Wood, of California, Mo., for appellant.

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

FARIS, J.

This prosecution is bottomed upon section 4520 of the Revised Statutes of Missouri of 1909, which defines one of the ways in which, pursuant to statute, burglary in the second degree may be committed. So much of the above section as is pertinent to the question of the goodness vel non of the information herein reads thus:

"Every person who shall be convicted of breaking and entering any building, the breaking and entering of which shall not be declared by any statute of this state to be...

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