State v. Sprague

• Decision Date: 09 May 1899
• Citation: 50 S.W. 901,149 Mo. 409
• Parties: STATE v. SPRAGUE.
• Court: Missouri Supreme Court

50 S.W. 901

149 Mo. 409

STATE v. SPRAGUE.

Supreme Court of Missouri, Division No. 2.

May 9, 1899.

LARCENY — VALUE OF GOODS — BURGLARY — CRIMINAL LAW — ACCOMPLICE — INSTRUCTIONS — HARMLESS ERROR.

1. Under Rev. St. 1889, § 3529, providing that where a person committing a burglary also commits a larceny, both offenses may be prosecuted by one indictment, and a stated punishment shall be assessed for the larceny in addition to the punishment imposed for the burglary; and section 3535, making the stealing of property of over $30 in value grand larceny, — an instruction, in a prosecution for burglary and larceny, that if, in connection with the burglary, property of any value was stolen, accused may be convicted of larceny, and, if no burglary was committed, but property of the value of $30 or more was stolen, accused may be convicted of grand larceny, is correct, since the value of the property is material only where no burglary was committed in connection with the larceny.

2. Where the jury has been told to convict accused if he stole any of the goods charged in the indictment, a further instruction to the same effect, which uses the term "any of the goods * * * in the building" is not erroneous, since it would not be misunderstood.

3. Error, if any, in permitting proof of the burglary of a warehouse, and larceny therefrom, under an indictment for burglary in and larceny from a storehouse, is harmless where accused is acquitted of burglary and convicted of larceny.

4. There is no variance where the indictment describes the place of the burglary and larceny as a "storehouse," and the evidence shows that it was a "warehouse," the two terms being synonymous.

5. An accomplice testified that accused came to him during the night the larceny was committed, and told him that they had made a raid, and had placed the goods in his store. Witness went with accused to the store, where he found the goods as stated by accused, and they hid them on his premises. The accomplice's wife testified that accused came to their house on the night in question, and went away with her husband, and the goods were found in accomplice's store soon after the commission of the larceny. Held to warrant a conviction.

6. The only evidence of the value of the goods having been that they were worth not less than $40, an instruction on petit larceny was unnecessary.

7. Error in failing to instruct on petit larceny in a prosecution for larceny is waived by failure to except because the charge does not fully cover all questions of law and fact.

8. An instruction that the evidence of an accomplice should be considered with great caution, but, if the jury be satisfied of its truth, they may convict thereon, though uncorroborated, is erroneous in not informing the jury what is meant by corroboration.

9. While a conviction may be had on the uncorroborated testimony of an accomplice, yet his testimony, when not corroborated by a person not implicated in the commission of the offense, as to matters connecting accused with the commission of the crime, should be received with great caution, and the jury ought to be fully satisfied of its truth before convicting accused on it alone.

10. An affidavit that, to affiant's best knowledge and belief, a juror, while deliberating, told the jury, as of his own knowledge, that accused had committed another similar crime, is insufficient to impeach a verdict of guilty.

11. After the jury in a criminal case had agreed, and while waiting to be brought into court to return their verdict, a juror separated from the rest, but after an interval of five minutes he was brought back to the jury room by the sheriff. Held not prejudicial misconduct.

Appeal from circuit court, Dent county; L. B. Woodside, Judge.

Wesley Sprague was convicted of larceny, and he appeals. Reversed.

L. Judson and Wm. P. Elmer, for appellant. The Attorney General and Sam. B. Jeffries, for the State.

SHERWOOD, J.

Defendant was awarded three years in the penitentiary as and for punishment of larceny of goods, wares, and merchandise of the Dent County Mercantile Company. The indictment, so far as necessary to quote, is the following: "Upon their oaths do present and charge that Wesley Sprague and Jack Sprague, on the ____ day of April, 1898, at and in Dent county and state of Missouri, did then and there unlawfully, feloniously, and burglariously break into and enter the storehouse of the firm of the Dent County Mercantile Company, a corporation duly incorporated under the laws of the state of Missouri, there situate, the same being a storehouse and building in which divers goods wares, and merchandise and valuable things were then and there kept for sale and deposited, with intent the said goods, wares, and merchandise in said storehouse then and there being found, then and there unlawfully, feloniously, and burglariously to steal, take, and carry away, and two certain dark-colored overcoats, of the value of $8.00; one small overcoat, of the value of $5.00; one ladies' brown jacket, of the value of $6.00; one ladies' blue jacket, silk-lined, of the value of $8.00; one ladies' black jacket, of the value of $8.00; one sack of roasted coffee, of the value of $18.00; one hundred pounds of flour, of the value of $2.80, — all of the aggregate value of $55.80, of the personal goods and chattels of the said firm of the Dent County Mercantile Company, then and there in said storehouse and building being found, — did then and there unlawfully, feloniously, and burglariously steal, take, and carry away; against the peace and dignity of the state. J. J. Cope, Prosecuting Attorney." A demurrer to the evidence on Jack Sprague's part was held well taken, and the cause proceeded alone against Wesley, the father.

1. The first instruction given at the instance of the state is as follows: "The court instructs the jury that if you believe and find from the evidence that the defendant, Wesley Sprague, at and in the county of Dent and state of Missouri, on the night of the 9th day of April, A. D. 1898, did willfully and unlawfully break into and enter a certain storehouse, and if the said storehouse was at the time and place aforesaid in the possession of the Dent County Mercantile Company, a corporation organized under the laws of the state of Missouri, and if the said defendant broke into and entered the said store building, at the time and place aforesaid, with the intent then and there to take, steal, and carry away, and convert to his own use, and deprive the owners of the use thereof, of any valuable goods, wares, and merchandise situate, kept, and deposited in the said building, then you will find him guilty of burglary, and assess his punishment at imprisonment in the penitentiary for a term not less than three years. And if you further believe and find from the evidence that this defendant, Wesley Sprague, at the time and place aforesaid, did willfully and feloniously steal, take, and carry away from within said building, with intent to convert to his own use, and deprive the owners of the use thereof, any goods, wares, and merchandise of any value whatever, and if such goods, wares, and merchandise were then and there the property of the Dent County Mercantile Company, a corporation as aforesaid, you will also find him guilty of larceny, and assess his punishment for such larceny at imprisonment in the penitentiary for not less than two nor more than five years." Instruction No. 7, also given on behalf of the state, told the jury that: "Although you may not believe and find from the evidence that the defendant broke into and entered the building in question, yet if you find and believe from the evidence that the defendant, Wesley Sprague, on the night of the 9th day of April, 1898, at and in the county of Dent and state of Missouri, did willfully and feloniously take, steal, and carry away any of the goods, wares, and merchandise charged in the indictment, with the intent to convert the same to his own use, and to deprive the owners of the use thereof, and if said goods, wares, and merchandise you may find to have been so taken by defendant, if you find they were so taken by him, were of the value of thirty dollars or more, and were at the time and place aforesaid the property of the Dent County Mercantile Company, a corporation organized under the laws of Missouri, you will find him guilty of larceny, and assess his punishment at imprisonment in the state penitentiary for a term of not less than two nor more than five years." Section 3529, Rev. St. 1889, declares that: "If any person in committing burglary shall also commit a larceny, he may be prosecuted for both offenses in the same count, or in separate counts of the same indictment, and, on conviction of such burglary and larceny, shall be punished by imprisonment in the penitentiary, in addition to the punishment hereinbefore prescribed for the burglary, not less than two nor exceeding five years." Section 3535, Id., provides that: "Every person who shall be convicted of feloniously stealing, taking and carrying away any money, goods, right of action, or other personal property or valuable thing whatsoever, of the value of thirty dollars or more, or any horse, mare, gelding, colt, filly, ass, mule or neat cattle, belonging to another, shall be deemed guilty of grand larceny; and dogs shall, for all the purposes of this chapter, be considered personal property." It is asserted that the instructions already quoted are in conflict with each other. But this is a mistake. Under the provisions of section 3529, supra, if both burglary and larceny are committed at the same time, then the value of the property stolen is immaterial. State v. Barker, 64 Mo. 282; State v. Henley, 30 Mo. 509. And it was to meet the provisions of that section that instruction No. 1 was drafted; and it was properly drafted, since the finding of defendant guilty of larceny if the goods stolen were of any value was...