State v. Person

• Decision Date: 11 April 1911
• Citation: 234 Mo. 262,136 S.W. 296
• Parties: STATE v. PERSON et al.
• Court: Missouri Supreme Court

136 S.W. 296

234 Mo. 262

STATE v. PERSON et al.

Supreme Court of Missouri, Division No. 2.

April 11, 1911.

1. BURGLARY (§ 18)—INFORMATION.

Under Rev. St. 1899, § 1886, providing that every person convicted of breaking or entering any building, the breaking or entering of which shall not be declared burglary in the first degree, etc., with intent to steal or commit any felony therein, shall on conviction be adjudged guilty of burglary in the second degree, an information charging defendants with burglary and larceny, with breaking into and entering on a certain date, the beerhouse of one K., the same being a building in which beer and other valuable things were then and there kept, by then and there bursting a padlock and chain of an outer door, with the intent to burglariously steal and carry away said goods, and that they did burglariously and feloniously steal and take away 80 bottles of beer in said building, etc., is sufficient, as it alleges every essential fact required by the statute.

2. CRIMINAL LAW (§ 1172)—APPEAL—HARMLESS ERROR.

Under an information charging burglary and larceny, where the jury acquitted the defendants of the charge of larceny, it is unnecessary to pass upon whether the court should have instructed on petit larceny, as well as grand larceny.

3. BURGLARY (§ 41)—EVIDENCE.

In a prosecution for burglary, evidence held to sustain a verdict of guilty.

4. CRIMINAL LAW (§ 877)—VERDICT—CODEFENDANTS.

In a prosecution for burglary, a verdict, "We the jury in the case of State v. P. and B., find the defendants P. and B. guilty of burglary in the second degree," etc., while it might have been improved by inserting the word "each" before the word "guilty," is sufficient.

5. CRIMINAL LAW (§ 877)—VERDICT—SEPARATE PUNISHMENT.

Under Rev. St. 1899, § 2647 (Rev. St. 1889, § 4228), requiring that, when there are several defendants jointly tried, the punishment of each, in case of conviction, must be assessed separately, where this was not done, the court should either have refused to receive the verdict, or suggested its being put in proper form, or itself have assessed and declared the punishment, under Rev. St. 1899, § 2649 (Rev. St. 1889, § 4230), and failing to do so was reversible error.

6. CRIMINAL LAW (§ 1088)—APPEAL AND ERROR—VERDICT.

A verdict in a criminal case is a part of the record proper, and the Supreme Court is bound to take notice of an error therein upon appeal.

Appeal from Circuit Court, Iron County; Jos. J. Williams, Judge.

William Person and William Border were

convicted of burglary, and they appeal. Reversed and remanded, with directions.

Elliott W. Major, Atty. Gen., and Jno. M. Dawson, Asst. Atty. Gen., for the State.

PER CURIAM.

On October 14, 1908, the prosecuting attorney of Iron county filed an information in the circuit court of Iron county, charging the defendants with burglary and larceny in breaking into and entering, on the 13th day of September, 1908, a certain beerhouse of one R. C. Knight, the same being a building in which beer, goods, and merchandise, and other valuable things were then and there kept and deposited, by then and there bursting and breaking a certain padlock and chain of an outer door of said building, with the intent the said goods, wares, and merchandise then and there unlawfully, feloniously, and burglariously to steal, take, and carry away, and 80 bottles of beer of the goods, wares, and merchandise, then and there in said building found, did burglariously and feloniously steal, take, and carry away, against the peace and dignity of the state.

At the October term, 1908, of said court the defendants were put upon their trial before a jury, and were convicted of burglary in the second degree as charged in the information, and their punishment assessed jointly at five years in the penitentiary. Motions for a new trial and in arrest of judgment were duly filed, heard, and overruled, and the defendants sentenced to the penitentiary, and from that sentence they have appealed to this court. The defendants are not represented in this court by counsel, but, as in duty bound, we have examined the record, and upon that record the cause must be disposed of by this court.

The information is predicated upon section 1886, R. S. 1899, which provides: "Every person who shall be convicted of breaking or entering any building the breaking and entering of which shall not be declared by any statute of this state to be burglary in the first degree, or any booth or tent or any boat or vessel or railroad car in which there shall be at the time any human being or any goods, wares, merchandise or other valuable thing kept or deposited, with intent to steal or commit any felony therein, shall on conviction be adjudged guilty of burglary in the second degree."

The information was entirely sufficient to charge an offense under this section. It alleges every essential fact required by the statute.

The jury in their verdict acquitted the defendants of the charge of larceny, and it is unnecessary to pass upon the question whether the court should have instructed on petit larceny, as well as grand larceny. We discover no substantial objection to the instructions of the court. They seem to cover every phase of the case presented by the evidence.

The evidence tended to establish that Knight, the owner of the beerhouse, left the same about 11:30 o'clock on Saturday night, September 12, 1908, and when he left the door thereof was securely fastened by a chain and padlock. Next morning, about 7 o'clock, he found the padlock broken, and there were two cases of beer and a gunny sack missing from his merchandise in the house....