State v. Riddle

• Citation: 245 Mo. 451,150 S.W. 1044
• Parties: STATE v. RIDDLE.
• Decision Date: 13 November 1912
• Court: Missouri Supreme Court

150 S.W. 1044

245 Mo. 451

STATE v. RIDDLE.

Supreme Court of Missouri, Division No. 2.

November 13, 1912.

1. BURGLARY (§ 23)—INDICTMENT AND PROOF — VARIANCE — OWNERSHIP OF PROPERTY STOLEN.

It is unnecessary for the indictment for breaking and entering a dwelling with intent to steal to allege the ownership of the money which it is charged defendant intended to steal; so that it need not be proved as charged.

2. CRIMINAL LAW (§§ 48, 50)—INSANITY AS A DEFENSE — KLEPTOMANIA — IRRESISTIBLE IMPULSE.

The test of insanity as a defense is knowledge of the right and wrong of the particular act charged; and the "irresistible impulse" doctrine does not obtain, though the defense be kleptomania.

3. CRIMINAL LAW (§ 50)—CAPACITY TO COMMIT CRIME — "IRRESISTIBLE IMPULSE" "RIGHT AND WRONG TEST."

The distinction between the doctrine of "irresistible impulse" and the "right and wrong test" is that in the latter case the person committing the act is unable, by reason of mental infirmity, to comprehend that the act is wrong, while the doctrine of "irresistible impulse" applies where the person knows that the act is wrong, but is driven by an irresistible impulse to commit it.

Appeal from Circuit Court, Hickory County; C. H. Skinker, Judge.

Len Riddle was convicted of burglary, and appeals. Affirmed.

Defendant was convicted of burglary in the second degree upon an indictment which charged him with breaking into and entering the dwelling house of Lizzie Edde, with intent to steal therefrom "certain goods and chattels." The indictment also charged the larceny of certain money contained in the dwelling, the property of said Lizzie; but of this latter charge the defendant was acquitted.

The position taken by the defendant here appears from the following excerpt from the brief filed by his counsel: "The defense is that the defendant, from all the facts in the case, could not have been at the house at the time it is claimed to have been entered. That there is a fatal variance between the allegations in the indictment and proof in this: That it is alleged that be entered the house with the intent to steal $8.15, the money of Lizzie Edde. There is an absolute failure of proof that she had any such money in the house; but, if he went in there to steal any money, it was the money of Lottie Hack. The jury acquitted him of any larceny. The evidence shows that the defendant is a kleptomaniac, and, even if he committed the offense as charged, should have been acquitted on that ground. The court refused proper instructions in the case, and gave improper instructions."

It is unnecessary to set out the facts testified to concerning the burglary itself. It is not seriously contended that the evidence for the state does not sustain the finding of the jury as to the act itself. The case in this regard was fully established by the evidence for the state. The main defense is insanity. The facts concerning this claim will appear in the opinion.

J. W. Montgomery and W. Le Pitts, both of Hermitage, and Rechow & Pufahl, of Bolivar, for appellant. Elliott W. Major, Atty. Gen., John M. Atkinson, Asst. Atty. Gen., and A. W. Stewart, of Annada, for the State.

FERRISS, J.

(after stating the facts as above). [ 1 ] 1. The charge of variance cannot be sustained. It was not necessary to charge the ownership of the money in the indictment, and consequently not necessary to prove it as charged. Proof that defendant entered the house with intent to steal sustained this charge. The proof showed that the money taken, although in charge of Lizzie Edde, was the property of another. The gist of the offense is the entering the house with intent to steal. State v. Tyrrell, 98 Mo. 354, 11 S. W. 734; State v. Hutchinson, 111 Mo. 263, 20 S. W. 34.

2. It was claimed as a defense that, when defendant committed this burglary and larceny, he was suffering from a form of insanity known as kleptomania, which counsel, in an instruction offered, defined as "an irresistible propensity to steal." To sustain this position, evidence was introduced tending to prove that, some years prior to this transaction, defendant had been guilty of theft. The instances attempted to be shown were the following: During the absence from home of the owner, he stole a basket of eggs and traded them at a store, leaving at the store the basket, which was subsequently returned to the owner. Again he hitched his team to the wagon of a relative, when the latter was away from home, and drove it to mill with three sacks of the relative's wheat. The wagon was returned next day by a brother of defendant. At another time he invited some persons to come over to his father's house the next day to a turkey dinner. They came, and defendant furnished the turkey. On the night preceding the dinner, a turkey was stolen from a brother-in-law of defendant living seven miles distant. The remaining alleged theft was the taking by defendant of a colt from a pasture distant two miles from the house of the owner and trading it off to a person who lived five miles away. He drove the colt on the public road in daytime, and stated to two witnesses that he had bought it. The testimony relative to these matters was introduced by defendant. There was no counter evidence. It cannot be said to have the force of a conviction after full trial. There is no evidence in the case of any insanity...