State v. Nicholas

• Decision Date: 13 July 1909
• Citation: 121 S.W. 12,222 Mo. 425
• Parties: STATE v. NICHOLAS et al.
• Court: Missouri Supreme Court

121 S.W. 12

222 Mo. 425

STATE v. NICHOLAS et al.

Supreme Court of Missouri, Division No. 2.

July 13, 1909.

1. CRIMINAL LAW (§ 1210) — EXTENT OF PUNISHMENT — BURGLARY AND LARCENY.

If a defendant, in committing a burglary, also commits a larceny, it is immaterial what was the value of the property, and, if convicted of both, the punishment for the larceny is in addition to that for the burglary by imprisonment in the penitentiary.

2. CRIMINAL LAW (§ 1210) — EXTENT OF PUNISHMENT — BURGLARY AND LARCENY.

If a defendant tried for burglary and larceny is acquitted of the burglary and convicted of the larceny, the character of the larceny of which he may be convicted depends entirely on the value of the property stolen.

3. LARCENY (§ 68) — QUESTIONS FOR JURY.

If there is any conflict whatever in the testimony as to the value of property stolen on which the character of the larceny of which accused may be convicted depends, the question should be submitted to the jury by appropriate instructions.

4. CRIMINAL LAW (§ 845) — TRIAL — INSTRUCTIONS — SUFFICIENCY OF OBJECTION.

After the court instructed the jury, defendants, by their counsel, interposed the following objection: "Comes now the defendants and object to all of the instructions in this case by the court and except to the same, and especially except to the court in not instructing on all the law in the case and not instructing on the different degrees of larceny." Held, that this was sufficient to call the court's attention to its failure to embrace in the instructions, in the event the jury should find defendants not guilty of burglary, the subject of larceny from a dwelling house.

5. LARCENY (§ 79) — INSTRUCTIONS — CHARACTER OR DEGREE OF OFFENSE.

Rev. St. 1899, §§ 1900, 1901 (Ann. St. 1906, pp. 1300, 1301), punishes the stealing of property from a dwelling house of the value of $30 or more, by imprisonment in the penitentiary for not less than two nor more than seven years, and, if its value is less than $30, by imprisonment in the penitentiary not less than two nor more than seven years, or in the county jail not exceeding three months, and hence, in a prosecution for burglary and larceny from a dwelling house, wherein there was testimony both ways as to the value of the property being more or less than $30, it was the duty of the court to designate in its instructions relating to larceny the punishment the jury might assess, taking into consideration their finding of the value of the property stolen, and where the only instruction given concerning larceny was that of grand larceny, and the only punishment authorized was imprisonment in the penitentiary not less than two years, it failed to instruct concerning larceny from a dwelling house and submit the issue of the value of the property, as well as the nature and character of the punishment authorized to be assessed, and such failure was manifestly erroneous.

6. CRIMINAL LAW (§ 825) — TRIAL — INSTRUCTIONS — NECESSITY OF REQUEST THEREFOR.

It is not absolutely essential that an instruction should be requested; but, if it is sufficiently indicated to the court that it has failed to cover other subjects involved in the issues presented to the jury, that is all that is required.

7. CRIMINAL LAW (§ 772) — TRIAL — NECESSARY INSTRUCTIONS — ELEMENTS OF DEFENSE.

It is the duty of the court to require the jury to find all the essential elements of an offense embraced within the charge, and designate the nature and character of the punishment they are authorized to assess.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Press Nicholas and another were convicted of grand larceny, and they appeal. Reversed.

Ward & Collins, for appellants. Elliott W. Major, Atty. Gen., and Jno. M. Atkinson, Asst. Atty. Gen., for the State.

BURGESS, J.

The defendants were convicted of grand larceny, and their punishment assessed at imprisonment in the penitentiary for a term of two years, under an information charging them jointly with having burglarized the dwelling house of one Kate Jones, and stolen therefrom one trunk and certain household articles, all of the values of $50.

The testimony discloses that defendant Nicholas lived at Portageville, in New Madrid county, and that defendant Cates, for some time prior to the date of the alleged offense, had been residing in the state of Tennessee. On the 4th day of December, 1907, the defendants and Fred Nicholas, a younger brother of defendant Nicholas, came to Caruthersville, Pemiscot county, from Tennessee, where they had been at work picking cotton. Kate Jones, the prosecuting witness, was a prostitute, living in a small house or "shack" in a part of the town of Caruthersville called the "Eddy," or "Bad Lands." Near her lived Myrtle Patillo, and, in another house, Bert Holyer and Jennie Holyer, all bearing bad reputations for morality. The defendants, together with Fred Nicholas, visited at the house of the prosecuting witness, Kate Jones, and also at the house of Bert and Jennie Holyer, about 6 o'clock in the afternoon of the day of the alleged offense, and soon afterwards took their departure. Between 6 and 7 o'clock that evening, Kate Jones and the Holyer man and woman, after locking the doors of their respective houses, went to a restaurant located in the business section of Caruthersville and had supper, and they remained uptown for an hour or an hour and a half; the prosecuting witness doing some trading at the stores. On their return they came upon the defendants, who were carrying a trunk between them along the railroad track. The defendants, as soon as they saw Kate Jones and her companions, dropped the trunk, and defendant Nicholas ran away; but Cates, who appeared to be drunk, was caught and held by Bert Holyer. Kate Jones went for the city marshal, who soon arrived upon the scene and placed Cates under arrest, and soon afterwards succeeded in arresting defendant Nicholas, whom he found uptown. On the person of Cates were found a number of small articles, such as hair and tooth brushes, combs, soaps, towels, and pillow slips, and other like articles were found in the possession of defendant Nicholas; the same having been taken from the house of the prosecuting witness. The back door of the house occupied by Kate Jones was found broken, and the drawers of a bureau in one of the rooms open and rifled of their contents. In the trunk, which was the property of the prosecuting witness, were found a blue dress skirt, two underskirts, three or four nightgowns, a woman's hat, and other wearing apparel, all belonging to Kate Jones; also some shirt waists which belonged to and were taken from the home...