State v. Powers
| Decision Date | 19 November 1895 |
| Citation | 32 S.W. 984,130 Mo. 475 |
| Parties | The State v. Powers, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Criminal Court. -- Hon. Henry L. Edmunds Judge.
Affirmed.
R. F Walker, attorney general, and C. O. Bishop for the state.
(1) The indictment is in all respects sufficient as to the burglary of which appellant was convicted. The instructions fully covered the law of the case, and are in all respects correct. There is no error apparent in the record. (2) The testimony of Mrs. Brooks was admissible and competent, its value to be determined by the jury. State v. Babb, 76 Mo. 501; State v. Dickson, 78 Mo. 438; State v Hopkirk, 84 Mo. 278. (3) The question asked of witness Rehn: "Now, don't you know that several other persons were arrested that evening before Powers, as the other man, besides O'Hearn?" was properly objected to, and the objection properly sustained. The fact that other persons were arrested as answering a description of appellant was wholly irrelevant and immaterial, especially as it appears that no such persons were arrested by this witness, nor upon any description or suggestion given by him. (4) The testimony offered by appellant that he was at home from 8:30 that evening until the next morning was wholly irrelevant; the uncontradicted testimony in the case showed that the burglary was committed between 2 and 3 o'clock in the afternoon. (5) There is nothing in the point that appellant was not convicted of the larceny as well as the burglary; they are separate and distinct offenses, though permitted by the law to be joined in the same indictment. State v. Kelsoe, 76 Mo. 505.
Defendant was jointly indicted with one O'Hearn, in the St. Louis criminal court, for burglary in the second degree. A severance was granted and defendant on a separate trial was convicted.
The indictment was entirely sufficient. There is no error in the record proper. The evidence tended very strongly to identify defendant and O'Hearn as the perpetrators of a burglary into the dwelling house of T. A. Morgan, number 1075 Selby Place, in the city of St. Louis.
The testimony on the part of the state tended to show as follows: Mr. and Mrs. T. A. Morgan resided in a dwelling house, number 1075 Selby Place, in the city of St. Louis, on March 22, 1893, with a colored domestic and two single gentlemen lodged in the house, which fronted upon a public square, called Carr Park. On the afternoon of that day, after carefully securing the house, Mr. and Mrs. Morgan, with the servant, left the house to attend the funeral of Mr. Morgan's brother, and returned about 5 o'clock. In the meantime the front basement door, under a front stoop or flight of steps, was forced open, the house entered, and Mrs. Morgan's bedroom, on the first floor, thoroughly ransacked, and there were taken away a revolver and diamonds of the value of $ 1,500, which had been left in a small satchel hung under some feminine apparel in a closet. One window of the bedroom was open (which had been left closed). This window looked out upon the back yard and was some eight or nine feet above the ground. A flower-box stood on the window ledge, and in the earth of this box was a footprint, and some flowerpots were overturned.
There was no issue raised as to the property taken, nor as to its value or ownership.
There were several houses in the row, each with a back yard, and these yards were separated by high board fences. Some of the palings of Morgan's north fence, near the outer back stairs, were found broken off.
Mrs. Brooks, who lived across the alley in the rear, heard a crash about 2:30 o'clock in the direction of Morgan's house, and saw the window open and two men on the ground underneath upon their hands and knees; they arose immediately, got over Morgan's north fence into the adjoining yard, scaled two other fences, and disappeared. One of the men was heavier than the other, slower in his movements, and had some difficulty getting over the fence. She said she could not positively identify the appellant as that man, but was permitted, after describing the man, over the objection of appellant, to state that "the party she saw looked like the defendant."
Anna Ricks, who also lived across the alley, opposite...
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