OPINION
HIGBEE, C.
On
November 24, 1924, the prosecuting attorney of Platte county
filed an information in the circuit court of that county
purporting to be based on the affidavit of E. M. Mathews
charging, in substance, that Robert Reed, on September 24,
1924, at Platte county, feloniously and burglariously broke
into and entered a certain box car, the property of the
Burlington Railway Company, a corporation, and being a car in
which divers goods, merchandise, and other valuable things
were then and there kept and deposited, with intent the
goods, merchandise, and valuable things in said car
feloniously and burglariously to steal, and did then and
there feloniously and burglariously steal, take, and carry
away one box of dry goods and one box of hardware and other
personal goods of the value of over $ 30 so found in said
car.
On
November 25, 1924, an amended information was filed, the
amendment being that the box car mentioned in the information
was the property of the Chicago, Burlington & Quincy
Railway Company, a corporation organized under the laws of
the state of Illinois and permitted to do business in the
state of Missouri.
The
case went to trial on March 10, 1925, at the conclusion of
which the jury found the defendant guilty of burglary as
charged in the information, assessed his punishment at
imprisonment in the penitentiary for a term of two years, and
acquitted him on the charge of larceny. Motions for new trial
and in arrest having been filed and overruled, defendant was
sentenced in accordance with the verdict and appealed.
Clarence
Wilson, employed by the railway company, testified:
'I
left St. Joseph, where I lived, at about 6:30 p. m. on
September 23, 1924, on a freight train and arrived at East
Leavenworth about 1 or 1:30 a. m. of the following day. A box
car belonging to the Chicago, Burlington & Quincy Railway
Company (usually called 'the Burlington' by counsel
and witnesses) loaded with merchandise, had been set out on a
siding at East Leavenworth. I found one door of this car was
open and a lot of boxes piled out on the ground. I saw an
automobile in the wagon road and could hear boxes being torn
open in the direction of the automobile, and saw a flashlight
coming through an adjoining cornfield. I figured they were
loading the stuff into this automobile and waited until they
got it loaded. Then they all got around the automobile. I hid
in the weeds, about 20 steps distant from them. I called for
them to throw up their hands; they started shooting from the
automobile; fired 4 or 5 shots. I returned the fire, firing
several shots, and saw one fellow fall, but he got up and ran
up the road. I ran to the automobile, and while standing at
its front end I seen this fellow on his knees on the bottom
of the car; he drew a sawed-off shotgun on me. I ducked to
the ground beside the auto and the shot passed over me, and
before the fellow could reload the gun, I shot him through
the head, killing him instantly. I took the shotgun and went
to notify the sheriff. When the sheriff came, we went back up
the road, but the auto was gone. It was a Buick touring car.
We went to the box car and found it had been pilfered. While
at the car, we heard some one in the cornfield calling for
help. We went over to him; he was Joe Scotch. He was shot in
the shoulder. We took him to Platte City, where
he died about 6 a. m. I was unable at the time of the
shooting to identify any of the parties except only one
fellow's voice -- this Julius Scotch. It was a peculiar
voice. He said, 'This won't go in there' This was
Julius Scotch. I didn't know any of them at the time.
Heard this voice at the police station in St. Joseph when he
was arrested the next day. He was supposed to be a brother of
the two dead Scotchs. This was in Platte county, Mo. It was
dark when I arrived at East Leavenworth; there were no lights
on the automobile. The box car was about two blocks from the
highway where the automobile was parked. I saw no man about
the box car. The first time I saw the defendant to recognize
him was in jail at St. Joe. (Witness here identified the
shotgun) I turned it over to the prosecuting attorney. When I
took it from the dead man, there was an empty shell in the
barrel and there were shells in the magazine; I smelled the
powder of the exploded shell.'
The
evidence shows that this box car which was broken into was
the property of the Chicago, Burlington & Quincy Railway
Company, an incorporation organized under the laws of the
state of Illinois; that it was marked 'C., B. &
Q' and numbered 120048; that it was loaded at Kansas
City, Mo., on September 23, 1924, with merchandise packed in
boxes and cartons consigned to persons in Leavenworth, Kan.;
that the car doors were sealed, and the car was set out on a
switch or siding at East Leavenworth on the night of
September 23, 1924, to be transferred across the river to
Leavenworth, Kan. The car arrived at Leavenworth on the
morning of September 24; one door was partly open. The
contents were checked. Among other things it contained a
shipment of Kraft cheese in tin cans for Bittman-Todd. They
were in cartons. There should have been 20 cases; there were
only 5 of these in the car, and one of them was torn open and
the contents scattered over the floor of the car. There was a
shipment of airplane tools and supplies for the fort, which
was considerably short, consisting of bits, augers, hammers,
pliers, screw drivers, chisels, files, blow torches, monkey
wrenches, aviators' gloves, solder, etc.
Elbert
Fleming, living 7 miles northeast of Platte City, identified
certain articles he found on the morning of September 24,
1924, in his wheat field close to the road, near Mellon's
bridge, as if they had been thrown over the fence. Seeing the
name of Bittman Todd on the cases of cheese, he telephoned
that company and then called the sheriff, Tom Hulett, who
came and took charge of the articles referred to by the
witness Fleming. There was blood on the cheese and several
other articles. They were all identified and offered in
evidence.
The
defendant, Reed, and Julius Scotch and his two brothers were
seen in Reed's Buick car on the afternoon of September
23, 1924, in St. Joseph, 'headed south' in the
direction of the Scotch home. Frank and 'Honey'
Scotch were in the car; Reed was driving. Joe Scotch was not
in the car. They had been seen together quite frequently;
they associated together.
George
Adkins testified:
'I
live about 20 miles north of here (Platte City) in Buchanan
county, right on the road. Between 6 and 7 a. m. on September
24, 1924, while Mr. Proffitt and I were driving along the
highway we met a man dressed in a leather coat, bareheaded,
and a dark-complected fellow. He was going west. He put his
hand over his face like that (indicating). I learned
afterward about a Buick car being abandoned below my place. I
seen it the same day. I cannot say this defendant is the man
I saw in the road. That was about 6 miles above Dearborn
where I live.'
J.
C. Byrd testified:
'I
live 2 miles southeast of Faucett, between Faucett and
Dearborn, in Buchanan county. I met the defendant Reed about
7 o'clock on the morning of September 24, 1924, in the
road; he was walking north in front of Duncan Ray's
house. He was carrying a leather coat on his left arm. I was
driving a tractor and threshing machine to Mr. Adkin's to
do some threshing. It was on the Manville road, a pretty well
traveled road. He was walking pretty fast and sweating
freely. We was threshing there in the field to the side of
where the car was abandoned, and they told me at the noon
hour this is what happened. He had on a little cap when I met
him.'
Walter
L. Mack testified:
'I
live 4 miles south of Faucett; am a farmer and in the real
estate business in St. Joseph. I was driving to St. Joseph on
the morning of September 24, 1924, and overtook the defendant
about 7:30 or 8 o'clock. He was walking. I invited him to
ride with me. He said he ran out of gasoline and he was going
to St. Joe to get a friend of his to bring out another car.
He carried a leather coat on his left arm and was bareheaded;
said he had a bad case of dandruff and didn't wear a hat
in the early part of the day. He said he was in the country
looking for apples. I turned to go to a filling station in
South St. Joe, and he stepped out and thanked me. I saw no
blood on the coat. I picked him up about 5 miles from
Dearborn. It is 16 miles from my house to St. Joe, and I was
about 2 miles from my house when I picked him up.'
J.
S. Myers testified:
'I
live in St. Joe; run an automobile business. I sold the
defendant a Buick car, March 13, 1923, and took a mortgage
back. I saw this car after it was hauled in after the 24th.
It was in the Inter-State Garage and afterwards in our own.
We replevined the car. I found blood in the car; the
windshield was broken.'
Tracy
Berry, an embalmer with Fleeman and Miller, testified:
'I
was called to go to South St. Joe on the morning of September
24, 1924, to get a
car and a dead man; found the remains of Frank Scotch in the
back part of the car with a cushion over it. I knew the
Scotch boys. It was a Buick car. We towed the car to St. Joe.
Found what looked like blood on the floor of the car. There
was a hole in the windshield and a hole on the left side,
right back of the front door. You could put your finger
through it; it was a ragged hole. Blood had dripped through
the floor boards to the ground. We ddin't try to start
it; the brakes were in bad shape, and there was one light...