State v. Schultz
| Decision Date | 03 June 1927 |
| Docket Number | No. 27800.,27800. |
| Citation | 295 S.W. 535 |
| Parties | STATE v. SCHULTZ. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jackson County; S. A. Dew, Judge.
Louis Schultz was convicted of burglary in the second degree, and he appeals. Reversed and remanded.
William J. Leahy and Robert M. Coleman, both of Kansas City, for appellant.
North T. Gentry, Atty. Gen., and A. M. Meyer, Sp. Asst. Atty. Gen., for the State.
On October 1925, the grand jury of Jackson county, Missouri, returned an indictment against appellant and one Louis Berman, charging then with burglary in the second degree. Appellant took a severance, and upon trial was found guilty and sentenced to imprisonment in the penitentiary for two years.
Many errors are complained of in the motion for new trial, some specific, and others too general and indefinite to be reviewable under the present rule; but counsel for appellant now urge only the insufficiency of the indictment and the incorrectness of the main instruction as grounds for reversal.
I. Omitting all formal parts, the indictment reads as follows:
"The grand jurors for the state of Missouri, duly summoned from the body of said county of Jackson, being duly impaneled, sworn, and charged to inquire within and for said county, upon their oaths present and charge that Louis Schultz and Martin Berman, whose Christian names in full are to the said grand jurors unknown, on the 17th day of September, 1925, at the county of Jackson and state of Missouri, did then and there unlawfully, feloniously, and burglariously break into and enter a certain building, to wit, a store building known as House's hardware and dry goods store, located at 4817 Prospect avenue, Kansas City, Missouri, there situate, the same being a building in which divers goods, wares, and merchandise and valuable things were then and there kept for sale and deposited, with felonious intent the said goods, wares, and merchandise and valuable things in said building there and there being, then and there unlawfully, feloniously, and burglariously to steal, take, and carry away, against the peace and dignity of the state." (Italics ours.)
The failure to allege ownership of the building charged to have been burglarized renders this indictment fatally defective. It is the constitutional right of the accused to be informed as to the nature and cause of the accusation against him, and he is not so informed if the indictment or information lacks any of the essential elements of the offense sought to be charged.
The crime of burglary, as defined by the statute, necessarily means the interference by one person with the property rights of another, and it is well established in this state that the identity of the person whose rights are so violated must appear in positive form in the accusation as well as in the proof. Among the long line of cas...
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