State v. Stewart

• Decision Date: 01 December 1931
• Docket Number: 31434
• Parties: The State v. John Stewart, Appellant
• Court: Missouri Supreme Court

44 S.W.2d 100

329 Mo. 265

The State v. John Stewart, Appellant

No. 31434

Supreme Court of Missouri

December 1, 1931

Appeal from Dade Circuit Court; Hon. C. A. Hendricks Judge.

Reversed and remanded.

Edwin Frieze for appellant; Neale, Newman & Turner of counsel.

(1) The court erred in overruling defendant's motion to quash the information. State v. Schultz, 295 S.W. 535; State v. Simpson, 295 S.W. 739. (2) The court erred in overruling defendant's demurrer to the evidence offered at the close of the State's case, and again at the close of the whole case. State v. Goddard, 289 S.W. 651; State v. Jones, 168 Mo. 398. (3) The court erred in giving over defendant's objection the State's instruction numbered 1. Sec. 4048, R. S. 1929; State v. Conway, 145 S.W. 441; State v Lackey, 230 Mo. 707; State v. Igo, 108 Mo. 568; State v. Schultz, 295 S.W. 535. (4) The court erred in giving over defendant's objection the State's instruction numbered 2. State v. Britt, 213 S.W 425; State v. Wilson, 39 Mo.App. 184. (5) The verdict was a general and not a special one, and was insufficient under the law. State v. McHenry, 207 S.W. 808; State v. Hedgpeth, 278 S.W. 740; State v. Gant, 33 S.W.2d 972; State v. Cox, 266 S.W. 734.

Stratton Shartel, Attorney-General, and Denton Dunn, Assistant Attorney-General, for respondent.

(1) The information is sufficient in form and substance under Section 4048 (burglary in the second degree), Section 4077 (petit larceny, joined under Sec. 4056), R. S. 1929. The failure of the information to allege whether the Sharon Baptist Church was an incorporated or voluntary association is immaterial. State v. Carson, 18 S.W.2d 457, distinguishing State v. Schultz and State v. Simpson, 295 S.W. 535, 739, 317 Mo. 398. State v. Shields, 89 Mo. 259, and State v. Hedgpeth, 311 Mo. 457, 278 S.W. 740, are the Missouri law under State v. Carson, supra. Neither Sec. 4052, R. S. 1929, nor Sec. 22, Art. 2, Const. Mo., cited in the motion to quash, are involved. (2) The State's first three witnesses testified that the property taken belonged to the Sharon Baptist Church, meaning thereby the association of its members, and not merely its church house used by it. The evidence further tended to show that the church building was at the time in question kept closed, even if not always locked when not in use. There was not only sufficient evidence of ownership of the premises and contents as used by the church association of members, but also of use on the building of the physical force by the defendant necessary for him to enter it when closed. The jury were not bound to believe that the story of a self-confessed unlawful receiver of stolen property at least (if not also a principal in the second degree to the theft under Sec. 4446, R. S. 1929), that he and his fellow offender found the church door open when they entered and took the lamp, was true. Evidence that it was the habit of the owner of the building or his men to lock up and close the building at night was competent. State v. Hart, 94 S.C. 214, 77 S.E. 862. Nor is it essential that there should be any actual injury to the building in order to constitute a breaking. 9 C. J. 1011, n. 24; State v. Peebles, 178 Mo. 475. The admissions of the defendant implicating him in the offenses charged as well as his unsatisfactory explanation of his possession of the stolen lamp found by the sheriff as well as the other circumstances shown in evidence altogether raising the presumption of guilt were amply sufficient to warrant the jury in finding the defendant guilty of burglary and larceny as charged, as evidently their general verdict did find. The evidence also justified a finding of burglarious entry and with felonious intent to steal from the church building. State v. Prunty, 208 S.W. 91; State v. Tracy, 294 Mo. 372; State v. Strait, 279 S.W. 109; 9 C. J. 1082, sec. 144, and p. 1083, sec. 145, Missouri cases. (3) The defendant's own testimony recognizes the said church, shown to be located in Dade County, by the State's witnesses. So there was no controverted issue of fact on the question of venue. The instruction required finding of a breaking into the located Sharon Baptist Church house and the carrying away of its property. (a) We are prone to admit that the instruction should properly have required a finding that the defendant took the gasoline lamp away with the intention of stealing or appropriating it to his own use and of permanently depriving the owner of the use thereof. (b) The instruction assumed merely the uncontroverted fact proven by the State and impliedly acquiesced in by the defendant that the lamp belonged to the Sharon Baptist Church but it would have been better to have left it to the jury to find that proven fact. (c) The jury should have been authorized to find the defendant guilty either of burglary, or larceny, or burglary and larceny, and directed to state in their verdict specifically what they found defendant guilty of, if anything, and to assess punishments for guilt likewise separately. (4) The State's Instruction 2, was not by itself prejudicial error, though it was needlessly broad and needlessly specific. If the jury found that the building was closed at night, even though not locked, when not in use, as they might have done under the evidence, they might have reasonably inferred that a closed sash had been opened or a lock picked or forced without visible damage, to effect entrance, but we must admit that there is no evidence in the case of removal of a glass out of a door or of the bursting or breaking of a bolt or lock. (5) We have conceded that under State v. McHenry, 207 S.W. 808, and State v. Hedgpeth, 278 S.W. 740, that the jury should have found whether the defendant was guilty of burglary as charged in the information, and have fixed his punishment therefor, if guilty, and should separately have found whether the defendant was guilty of larceny as charged in the information and have fixed his punishment for that offense, if guilty, but we do not find any authority for counsel's statement that such special (or separately stated) verdicts "must recite the elements of the crime." State v. Gant, 33 S.W.2d 972. (6) The failure of the verdict to add the words "in the State Penitentiary" after the "two years imprisonment" is immaterial, as the court added the words to the judgment and sentence, as was its duty. Sec. 3704, R. S. 1929; State v. McDonough, 232 Mo. 219.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

Defendant was charged, by a verified information, filed in the Circuit Court of Dade County, Missouri, on September 29, 1930, with the crime of burglary and larceny. A trial of the case, on October 27, 1930, resulted in a verdict of guilty as follows:

"We the jury find the defendant, John Stewart, guilty as charged in the information and assess his punishment at two years imprisonment." The defendant on the same day filed his motion for a new trial. This motion was overruled by the court and the defendant sentenced. From this judgment defendant appealed.

In view of the fact that a reversal of the case is necessary, only a short statement of the facts will be made. The evidence on part of the State tends to prove that some time during the latter part of November or the early part of December, 1929, a gasoline lamp and pressure pump, of the value of seven dollars, were taken from the building of the Sharon Baptist church, located in Dade County, Missouri. Sometime later the property mentioned was found in the possession of defendant. The sheriff of the county testified that the defendant, when arrested, admitted that he, the defendant, in company with one Burleson, entered the church house in the nighttime and took the lamp. The State also introduced evidence tending to prove that the church building was kept locked.

Defendant, testifying in his own behalf, admitted that he and Burleson entered the church building some time after Christmas, in the year 1929, but stated that their only purpose was to get warm, the weather being very cold; that they found a fire in the stove and the door of the church building open, and that they entered through this open door. Defendant also testified that while there Burleson took the lamp in question and that later he, Burleson, traded it to the defendant, thus explaining his possession of the stolen property.

The defendant in his motion for a new trial has preserved for our review the following assignments of error:

1. That the information is insufficient and does not charge a felony.

2. That the court erred in not sustaining a demurrer to the evidence.

3. That the court erred in giving instructions numbered one and two on behalf of the State.

4. That the verdict is uncertain and therefore insufficient.

We will discuss propositions number one and two together, since they, to some extent, present the same questions of law. The information is as follows:

"Comes now W. S. Pelts, Prosecuting Attorney, within and for Dade County, in the State of Missouri, upon his official oath informs the court, that John Stewart on the -- day of November or December, A. D. 1929, at the County of Dade and State of Missouri into a certain church house and building of the Sharon Baptist Church, there situate and being feloniously and burglariously, did break and enter, with felonious intent and there, thereby feloniously and burglariously to steal, take and carry away certain wares, goods and merchandise, other valuable things, and personal property in the said church building, then and there kept and deposited, and in said church building one gasoline lamp and pressure pump of the value of $ 7.00 of the goods and wares and merchandise and other valuable things, and personal property of...