State v. Starling

• Decision Date: 23 December 1918
• Docket Number: No. 21017.,21017.
• Parties: STATE v. STARLING.
• Court: Missouri Supreme Court

207 S.W. 767

STATE v. STARLING.

No. 21017.

Supreme Court of Missouri, Division No. 2.

December 23, 1918.

Appeal from Circuit Court, Pulaski County; L. B. Woodside, Judge.

J. J. Starling was convicted of burglary in the second degree and of grand larceny, and appeals. Affirmed.

R. L. Johnston, of Waynesville, A. W. Curry, of Lebanon, T. D. Taylor, of South McAlester, Okl., and John W. Crow, of McAlester, Okl., for appellant.

Frank W. McAllister, Atty. Gen., and S. P. Howell, Asst. Atty. Gen. (Thomas J. Cole, of Joplin, of counsel), for the State.

WALKER, P. J.

Appellant was charged, by information in the circuit court of Pulaski county, with burglary in the second degree, and grand larceny in having, on June 22, 1917, broken into the bank of Waynesville and stealing therefrom $1,200 in money, and other property. Upon a trial in March, 1918, he was convicted of burglary as charged, and sentenced to 15 years' imprisonment in the penitentiary; and was also found guilty of larceny and sentenced to 5 years' imprisonment in the penitentiary. From this judgment he appeals.

A consideration of the errors assigned does not require a detailed statement of the facts, and the same would therefore serve no useful purpose.

The information contains all of the averments necessary to properly charge the offenses of burglary in the second degree and grand larceny, as these crimes are defined in sections 4521 and 4535, R. S. 1909; and, the larceny having been committed at the time the building was burglariously entered, the two offenses were, under section 4528, R. S. 1909, properly charged in one count. In State v. Burns, 263 Mo. loc. cit. 597, 173 S. W. 1070, and in State v. Christian, 253 Mo. loc. cit. 393, 161 S. W. 736, as well as in numerous earlier cases, the seal of our approval was placed upon the joint charge, under the statute, of the character of offenses here under consideration. In State v. Blockberger, 247 Mo. loc. cit. 605, 153 S. W. 1031, and in State v. Moss, 216 Mo. loc. cit. 441, 115 S. W. 1007, we held charges bottomed upon the statute authorizing this joint prosecution sufficient, within the meaning of the Constitution, if they conformed to the precedents defining the essentials necessary to charge these offenses separately. No tenable objection can therefore be made to the information.

At the close of the state's testimony, appellant interposed an instruction in the nature of a demurrer to the evidence. Upon this being overruled, he proceeded to offer testimony in his own behalf. In the absence of further action by appellant, in this regard, his demurrer would be deemed to have been waived; but the demurrer was renewed at the close of all of the testimony, and likewise overruled. This entitles appellant, upon his preservation of the alleged error in the motion for a new trial, to a review of the entire testimony. This material right we have accorded him, and, finding substantial evidence of his guilt, we will not undertake to overrule the action of the trial court. State v. Selleck, 199 S. W. 120; State v. Underwood, 263 Mo. 685, 173 S. W. 1039.

Leaving out of consideration the absence of specific objections to the admissibility and exclusion of testimony, a technical prerequisite to our consideration of same, we find no rulings of the trial court which deprived the appellant of any substantial right. Our interference, therefore, is in this respect not authorized.

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