State v. Scott

• Decision Date: 28 March 1892
• Citation: 19 S.W. 89,109 Mo. 226
• Court: Missouri Supreme Court
• Parties: STATE v. SCOTT.

19 S.W. 89

109 Mo. 226

STATE v. SCOTT.

Supreme Court of Missouri, Division No. 2.

March 28, 1892.

BURGLARY — EVIDENCE — POSSESSION OF STOLEN GOODS — INSTRUCTIONS.

1. Part of some stolen property found in defendant's possession had been found by him, some time after the burglary, several miles from the owner's house, and no previous possession of it by defendant was shown. The evidence was conflicting as to whether the rest of the goods were so found by him. Held error to instruct the jury that, if they believed the goods were carried away, as stated in the indictment, "and that recently thereafter the same property, or any part thereof, was found in defendant's possession, then the law presumes that the defendant is guilty of both the burglary and the larceny, and, if he has failed to account for his possession of said property in a manner consistent with his innocence, this presumption becomes conclusive against him;" for, since possession necessary to create a presumption of guilt was not shown as to the property found by defendant, a proper distinction should have been made in the instruction between that part of the stolen property and such, if any, as was not so found.

2. Such error is not cured by an instruction that, if the jury find that the goods were found by defendant, then he was not in possession thereof, unless the jury shall further find from the evidence that the stolen goods had been put there by defendant or by his procurement, when there was no direct testimony that the stolen goods were put there by defendant or by his procurement.

3. A reference in an instruction to the felonious and burglarious breaking into and entering the dwelling-house, "as charged in the indictment," and to the taking, stealing, and carrying away of the goods, "as mentioned in the indictment," is not prejudicial, where no issue is made on the description or identity of the goods alleged to have been stolen.

4. Where the evidence shows, without contradiction, that the property was stolen in a dwelling-house, it is unnecessary to instruct the jury as to its value; for by Rev. St. 1879, § 1309, stealing in a dwelling-house is grand larceny, regardless of the value of the property stolen.

5. The use of the technical word "felonious," without explanation of its meaning, in an instruction upon the felonious breaking into a house and carrying away goods, is not prejudicial, since it is merely descriptive of the grade of the offense.

Appeal from circuit court, Cooper county; E. L. EDWARDS, Judge.

Indictment of William Scott for burglary and larceny. Defendant was convicted of grand larceny, and appeals. Reversed.

D. W. Shackleford and Draffen & Williams, for appellant. The Attorney General, for the State.

MACFARLANE, J.

Defendant was indicted, by a grand jury of Cooper county, of burglary and larceny. Under the indictment he was tried and convicted of grand larceny, and sentenced to four years' imprisonment in the state penitentiary. From this judgment he has appealed.

Defendant was accused, under the indictment, of breaking into the dwelling-house of one Henry McPherson, by opening a window, and stealing therefrom an overcoat worth $50, and a suit of clothes worth $40, the property of Charles T. Perry, and one suit of clothes of the value of $25, the property of Celsus Perry. Upon the trial the evidence tended to prove that in June, 1889, Charles Perry was boarding at the residence of Henry McPherson, in the city of Boonville; that several suits of clothes hanging in a closet were stolen at night, and the parlor window was found open the next morning, though it had been closed the night before. About July 11th thereafter a part of this clothing was found in a pile of ties several miles south of Boonville, by some parties who were engaged in threshing near by. Defendant was at work with this threshing party, and had been for several days, but was not present when the clothes were found. The clothes were very dirty, and were left by these persons where they were found. Afterwards defendant brought the clothes to Boonville, had them cleaned, and used them. Defendant's house was searched, and all the clothing found in the house belonging to Perry was identified as the clothing discovered in the tie-pile, except a pair of striped pants and a black coat. These were identified as clothes belonging to Perry, and taken from McPherson's house. There was some conflict in the evidence as to whether this coat and pair of pants were in the tie-pile. The court gave the jury the following instruction in behalf of the state: "If the jury believe from the evidence that, at about the time mentioned in the indictment, some one did feloniously and burglariously break into and enter the dwelling-house of one Henry McPherson, as charged in the indictment, and did then and there feloniously and burglariously steal, take, and carry away the goods as mentioned in the indictment, and that recently thereafter the same property, or any part thereof, was found in the possession of the defendant, then the law presumes that the defendant is guilty of both the burglary and the larceny, and, if he has failed to account for his possession of said property in a manner consistent with his innocence, this presumption becomes conclusive against him."

Several objections are made to this instruction.

1. It is insisted, in the first place, that the evidence of the possession of the stolen goods by defendant was insufficient to raise a presumption that he was guilty of stealing them. The...