State v. South
| Decision Date | 19 January 1897 |
| Citation | 38 S.W. 716,136 Mo. 673 |
| Parties | The State, Appellant, v. South |
| Court | Missouri Supreme Court |
Appeal from Newton Circuit Court. -- Hon. J. C. Lamson, Judge.
Affirmed.
R. F Walker, attorney general, for the state.
The indictment in this case is sufficient and contains all the necessary averments to inform the defendant of the offense with which he is charged. Section 3526, R. S. 1889; State v. Hecox, 83 Mo. 534; State v. Edwards, 109 Mo 318. A barn in which is stored divers goods, wares merchandise, and valuable things is included in the word building as used in section 3526, supra, as much as is a railroad depot (State v. Edwards, supra), or any other building in which goods, wares and merchandise or other valuable things are kept and deposited. The judgment should, therefore, be reversed and the cause remanded that the court may proceed to try the defendant on this, a valid indictment.
The trial court granted the motion of defendant to quash the following indictment:
"The grand jurors for the state of Missouri, impaneled, sworn and charged to inquire within and for the body of the county of Newton and state aforesaid, upon their oath present and charge that on or about the twelfth day of December, 1895, at the county of Newton and state of Missouri, William South did then and there unlawfully, feloniously, and burglariously break into and enter the barn of Jane Joslin, there situate, the same being a building in which divers goods, wares, merchandise, and valuable things were kept and deposited with intent then and there, the goods, wares and merchandise and valuable things, in the said barn, then and there being, then and there feloniously and burglariously to steal, take and carry away; and twenty bushels of wheat of the value of ten dollars, and of the personal property of Willis A. Joslin, in the said barn then and there being found, did, then and there, feloniously and burglariously steal, take and carry away against the peace and dignity of the state."
This indictment is founded upon section 3526, Revised Statutes, 1889. That section is as follows:
"Every person who shall be convicted of breaking and entering: First, any building within the curtilage of a dwelling house, but not forming a part thereof; or, second, any shop, store, booth, tent, warehouse, or other building, or any boat or vessel, or any railroad car in which there shall be at the time some human being, or any goods, wares, merchandise or other valuable thing kept or deposited, with intent to steal or commit any felony therein, shall, on conviction, be adjudged guilty of burglary in the second degree."
The section just quoted, designates two offenses: First, breaking and entering any building within the curtilage of a dwelling house, but not forming a part thereof; second, breaking and entering "any shop, store, booth, tent, warehouse, or other building, or any boat or vessel, or any railroad car in which there shall be at the time some human being, or any goods, wares, merchandise, or other valuable thing kept or deposited, etc.
Under the ruling in Schuchmann's case, 133 Mo. 111, the word "barn" is not ejusdem generis as the words which precede the words "other building" in the section referred to.
Speaking of the strict construction which prevails respecting criminal statutes, Bishop says: Stat. Crimes [2 Ed.], sec. 194. See, also, Idem, secs. 119, 193, 218, 220, 227, 230.
Elsewhere the learned author observes: ...
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