State v. Peebles

• Decision Date: 09 December 1903
• Citation: 178 Mo. 475,77 S.W. 518
• Parties: STATE v. PEEBLES et al.
• Court: Missouri Supreme Court

77 S.W. 518

178 Mo. 475

STATE v. PEEBLES et al.

Supreme Court of Missouri, Division No. 2.

December 9, 1903.

BURGLARY — BREAKING — PRINCIPALS — INFORMATION — INSTRUCTIONS — VARIANCE.

1. In a prosecution for burglary, or burglary and larceny, the breaking and entry, like other facts, may be shown by circumstantial evidence.

2. In a prosecution of two persons for burglary and larceny it was not necessary, to support a conviction, to prove that both defendants entered the building, but if one of them entered, and was aided by the other in so doing and in stealing and carrying away the property, both were guilty of burglary and larceny.

3. Unlocking the door of a house with intent to steal personal property contained therein is burglary.

4. In a prosecution for burglary, proof of breaking, entry, and taking away the property against the will of the owner, justifies an inference that the opening of a door to the house was with criminal intent to steal.

5. In a prosecution for burglary the information charged that the crime was committed by unlocking and entering the front door of part of a building occupied by a certain firm, and it appeared that the property stolen was from another part of the building occupied by another person. The building was all under the same roof and inclosed as one, and the partition between the two parts did not extend the entire length of the building nor to the ceiling, so

that a person could have climbed over it without any breaking. The court charged that, if the defendants burglarized the building of the person in possession of that portion of the building from which the goods were taken, the jury should find them guilty. Held, that entering the portion of the building charged in the information to have been broken was burglary as to the entire building, so that the variance between the information and the charge was not fatal.

Appeal from Circuit Court, Atchison County; Cyrus A. Anthony, Judge.

Wilber Peebles and Oliver York were convicted of burglary, and appeal. Affirmed.

Hunt & Bailey and T. S. Stevens, for appellants. The Attorney General and Bruce Barnett, for the State.

BURGESS, J.

At the May term, 1903, of the Atchison county circuit court, the prosecuting attorney of said county filed in said court an information charging the defendants, Peebles and York, jointly, with having feloniously and burglariously broken into and entered a certain warehouse situate in said county and belonging to one James E. Hall and Aggie Rickards and Eliza Rickards, in which there were divers goods, wares, and merchandise and valuable things then and there kept for sale, with the felonious intent to burglariously steal, and did steal, take, and carry away, 15 sacks of flour of the value of sixteen and fifty one-hundredths of a dollar, of the goods belonging to said James E. Hall in said warehouse then being found, and did then and there feloniously and burglariously steal, take, and carry away, against the peace and dignity of the state. They were thereafter put upon trial in said court, and found guilty of both burglary and larceny, and their punishments respectively assessed at three years' imprisonment in the penitentiary for the burglary, and two years for the larceny. They thereafter in due time filed motion for new trial and in arrest, which being overruled, they saved their exceptions, and prosecute this appeal.

At the time of the alleged commission of the offenses with which defendants are charged, one Sylvester Hall owned a frame warehouse in the village of Watson, Atchison county. It fronted east, and had a board partition in the center running the entire length of the building from a point about six to eight feet west of the front. It only extended upward to about as high as the lower ends of the rafters, and was only about eight feet high, leaving it entirely open above the partition end between that and the roof. In the space at the east end between the end of the partition and the wall was where the flour was. It was stacked up to within three feet, or something like that, of the top of the partition. One J. E. Hall occupied, as tenant of Sylvester Hall, that part of the building north of the partition as a warehouse for the purpose of storing flour and other commodities, and at the same time there was a large number of sacks of flour therein, some 12 to 15 of which were stolen and carried away. Aggie Rickards and Eliza Rickards, as partners under the firm name of A. L. Rickards & Co., at the same time occupied the south side of the partition as a warehouse, in which they kept barreled salt and other articles of merchandise. Each of the rooms had a door in front, locked with different kinds of locks, and the evidence tended to show that the entrance was made through the door on the south side of the partition by unlocking it, and the flour passed over the partition from its north side to its south side, then out through the door. The offenses were committed on the night of the 4th or 5th of March, 1903. None of the stolen flour was found in the possession of defendants, and the evidence with respect to their connection with the offenses was altogether circumstantial. Defendant Peebles hauled a portion of the flour to the warehouse. It was the property of J. E. Hall, and that taken was worth about $16.

Elmer Cassey, a witness for the state, testified that early in March, 1903, he had been around the livery stable of the defendant Peebles, and that defendant York also spent considerable time there, he being Peebles' uncle; that these defendants entered jointly into a conversation with witness, told him that they had a key to the warehouse, and asked witness to go with them that night to get out some flour; they said that they would go into the building and hand out the flour; witness refused to take any part in such an expedition, and the defendants said that they could get along without him and would do it themselves. After this conversation the defendants at about 9 o'clock went off, and witness went to bed. The defendants did not say what warehouse they expected to get the flour from, but they did speak of getting it over the partitions, and there is evidence that there was no other warehouse in the town where flour was kept. After the information had been filed against the defendants and they were put under arrest, they asked Cassey not "to give them away." There was evidence tending to show that the character of Cassey, witness for the state, among his neighbors, for truth and veracity, was not good.

Over the objection and exception of defendants, the court instructed the jury as follows: "(1) The court instructs the jury that the defendants are presumed to be innocent of the offense charged; that before you can convict them, or either of them, the state must overcome that presumption by proving such defendant or defendants to be guilty beyond a reasonable doubt. If the jury have a reasonable doubt as to the guilt of either of the defendants, they should acquit such defendant; but a doubt, to authorize an acquittal, must be a substantial doubt, and not a mere possibility of innocence. (2) The jury are instructed that, if they believe from the evidence beyond a reasonable doubt, that the defendants, Wilber Peebles and Oliver York, did, on or about the 1st day of March, 1903, or at any time within three years next before the 5th day of May, 1903, at the county of Atchison and state of Missouri, feloniously and burglariously break and enter the warehouse of James E. Hall, in which at the time were stored...