State v. Owens

• Decision Date: 31 October 1883
• Parties: THE STATE v. OWENS, Appellant.
• Court: Missouri Supreme Court

79 Mo. 619

THE STATE

v.OWENS, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Andrew Circuit Court.--HON. H. S. KELLEY, Judge.

REVERSED.

Wm. Heren & Son for appellant.

D. H. McIntyre, Attorney General, for the State.

PHILIPS, C.

The appellant, with one Marion Owens, was indicted for burglary and larceny, committed by entering a shoe and harness shop and taking away certain specified property. There was a severance at the trial, and this defendant was convicted of the larceny and sentenced to two years in the penitentiary. From this judgment he has appealed to this court.

The leading features of the evidence are, that the defendants are cousins. Sidney Owens was reared in Nodaway county, and in the spring of 1878 he came to DeKalb county near a small village named Union Star, which was partly in the counties of DeKalb and Andrew. The store in question was situate in the latter county, and was occupied by one Barton and one Miller jointly as a shoe and saddler shop. The defendant Sidney had raised a crop in the neighborhood of this village that season, living with his brother-in-law, Blackford. The evidence showed that up to the time of the charge against him in question he had borne a good character.

In the month of October of that year the said Marion Owens came from the state of Iowa with a two-horse wagon, and stopped at said Blackford's, and worked some in the neighborhood, making Blackford's his usual place of stopping where he kept his team. He and Sidney slept together in the same bed, and were usually together at nights. At the saddle shop in question, Sidney, sometime previous to the alleged burglary, had ordered a bridle made. Shortly before the burglary he and Marion were in this shop looking at the bridle then ready for delivery, but defendant said he was not then prepared to pay for the same, and went away without it. They also, while in the shop, looked at a set of harness which had been made for another party. A few evenings afterward, on the 5th day of November, 1878, both Sidney and Marion attended a social party in the neighborhood. Between ten and eleven o'clock, or about that time, they left the party as if to go home. That night the storehouse was burglarized, the bridle and harness aforesaid were taken, as also a four-barrelled pistol, a pocket knife, pocket book, a valise and zinc trunk alleged to contain clothing, etc., one pair martingales and one pair boots, and perhaps other articles, with the value of each article set out in the indictment. About two weeks after this both of the parties disappeared from the neighborhood, and inquiry showed they left in the night with the said wagon and horses and a horse belonging to defendant Sidney. The course taken by them on leaving Blackford's was tortuous and unusual. The next morning after their departure they appeared at the house of defendant's father. A few days afterward they were arrested in Maryville, Nodaway county, by a deputy constable who had received information of the theft and burglary and a description of the property stolen. When taken before the magistrate of that town, who had issued the warrant, the said constable testified that the magistrate informed them of the charge against them, and asked: “Are you guilty or not guilty?” that defendant Sidney spoke up promptly and said “guilty,” and that Marion nodded assent. The committing magistrate testified, first corroborating the constable's statement, but on cross-examination said it was Marion who answered “guilty” and Sidney nodded assent. Neither of them, however, appears to have protested his innocence. The martingales in question were found on defendant Sidney's horse, which he was riding, and the knife, pistol and boots were found on Marion. There was also found on defendant's horse a bridle and saddle taken about the same time from one Dale. The balance of the stolen property was never found. The State introduced evidence tending to show that shortly after the burglary and larceny the defendant was seen with a pistol answering to the description of that taken from the store, which he proposed to trade to a neighbor friend.

The defendant, after making proof of general good character, testified in his own behalf, stating that on the night of the burglary, after he and Marion started home from the party, Marion said he would go to Union Star to meet a friend; that he separated from him, went on to his brother-in-law's and to bed; that in the night sometime Marion came in and went to bed with him. He did not ask Marion for the name of the friend he went to meet. He heard of the burglary the next day, and was afterward in Union Star. About the 20th of that month he and Marion started to Maryville, with a load of corn to sell, when they met a man on the road whom Marion said he knew in Iowa, and that he was apprehensive he was after him as he had trouble in Iowa for striking a man with a slung-shot. He did not inquire the name of this man from Marion. They turned aside from their purpose to go to Maryville and went to some railroad station and sold the corn and returned to Blackford's. Marion determined to leave that night, against the protestations of himself fand Blackford. Accordingly they hitched up the team of Marion, and tying his own horse behind the wagon, they left about sundown, traveling all night, arriving at his father's about sunrise the next morning. He claimed that he got or borrowed the saddle, bridle and martingales from Marion, who said he had bought them of some traveler before leaving Blackford's. He denied making the plea of guilty before the magistrate, and said the pistol he showed the witness on the night testified to by the witness, was not the pistol in question, but was a Remington pattern which he had owned for a long time.

The instructions are numerous, and will be noticed so far as necessary in the opinion, as also other incidental questions raised by the appellant.

I. It is insisted that the motion in arrest should have been sustained, for the reason that under section 19, page 785, General Statutes 1865, the same as section 1301, Revised Statutes 1879, a conviction for larceny cannot be sustained without the finding of the burglary. In other words, the larceny is an incident of the burglary, and the incident cannot follow except from the principal cause. The argument made by the learned counsel in support of this construction, is ingenious and plausible. But the question is now too well settled by the repeated decisions of this court to admit of further debate. Under this section burglary and larceny are two distinct offenses, and the two may be united in the same count, and the jury may convict of either. State v. Alexander, 56 Mo. 131; State v. Turner, 63 Mo. 436: State v. Barker, 64 Mo. 282; State v. Davis, 73 Mo. 129; State v. Bruffey, 75 Mo. 389; State v. Martin, 76 Mo. 337; State v. Kelsoe, 76 Mo. 505.

II. The appellant complains of the following instruction: “It is not essential to the guilt of the defendant that he should actually break into and enter the shop in person, or that he should steal the goods from the shop. It is sufficient if the defendant was present, aiding, advising or assisting in the act, and was present for that purpose. If, therefore, the jury believe from all the facts and circumstances in evidence that the defendant is guilty as charged in the indictment, or aided or assisted in the commission of the offense, the jury should find the defendant guilty.”

The criticism made on this instruction is the employment of the phrase “if the defendant was present aiding, etc., in the act.” It is claimed that as the indictment contained the charge of a burglary, as well as of larceny it is uncertain as to which of the offenses the word “act” applies, whether to one or to all. This is hypercritical--a mere refinement. The instruction must be construed in reference to the subject matter. The obvious purpose of it was, not to define to the jury the separate character of the offenses charged in the indictment, but it was to advise the jury simply that in order to find the defendant guilty of the offenses or offense charged, it was not necessary that they should believe from the evidence that he actually entered the building by breaking in himself or that he actually carried away the goods; but if they believed from the evidence that he was present aiding or counselling the “act” of the person who did enter the shop or who did steal the goods, that would be sufficient to authorize them to find the defendant guilty. The “act” manifestly referred to was the act of the burglary or the act of the theft. Other instructions advised the jury of their right, under the indictment, to find the defendant guilty of either the burglary or the larceny. No jury of ordinary intelligence could have been misled by this instruction.

III. The following instruction is vigorously assailed by defendant's counsel: “If the jury believe from the evidence that the shop in question was broken into and entered, and certain goods or property were stolen from said shop, and recently afterward any part of the property so stolen was found in the possession of defendant, such possession of said property would be presumptive evidence that defendant stole the goods, and if not satisfactorily rebutted by other facts and circumstances in proof, such possession would warrant a verdict of guilty as to the larceny. Possession of a part of the stolen goods recently after the larceny, is a circumstance from which the jury may infer that all the stolen goods were taken at the same time and by the person having possession of such part, and such recent possession of property stolen at the time of the burglary may, when taken in connection with other facts tending to establish guilt, warrant the jury in finding the defending guilty of burglary and larceny. The presumption of guilt arising from the mere naked fact of possession of the stolen goods, when not...