State v. Taylor

• Decision Date: 20 November 1896
• Citation: 136 Mo. 66,37 S.W. 907
• Parties: STATE v. TAYLOR.
• Court: Missouri Supreme Court

37 S.W. 907

136 Mo. 66

STATE v. TAYLOR.

Supreme Court of Missouri, Division No. 2.

November 20, 1896.

BURGLARY — INDICTMENT — ALLEGATION OF FELONIOUS INTENT — INSTRUCTIONS — ASPORTATION — EVIDENCE — WITNESSES — IMPEACHMENT.

1. An indictment charging that defendant did "feloniously and burglariously break into and enter" a certain store "with intent the goods, chattels, * * * in said store then and there being feloniously and burglariously to steal, take, and carry away," etc., is not defective, as charging no felonious intent.

2. If the felonious intent be not alleged, or be insufficiently alleged, in an indictment for burglary, such defect is cured by the subsequent allegation of a substantive felony after breaking and entering.

3. Where a witness denies that he had a certain conversation, it is competent in rebuttal to examine the person with whom the conversation is claimed to have been had, for the purpose of impeaching the first witness.

4. An instruction that if the breaking and entering was done with intent to steal, or commit "any felony," defendant was guilty of burglary in the second degree, is erroneous where the indictment merely charges intent to steal.

5. The removal of goods in a store from their accustomed places, with intent to take them, is a sufficient asportation to constitute the taking a theft.

6. On a trial for burglarizing a store, defendant's offer to prove that another person had

made a key which would unlock the store, and had threatened to burglarize it, was properly rejected, there being no accompanying offer to show any overt act towards the perpetration of the offense on the part of such person.

Appeal from criminal court, Johnson county; John W. Ryland, Judge.

Russell Taylor was convicted of burglary, and appeals. Reversed.

A. B. Logan, for appellant. The Attorney General and Morton Jourdan, for the State.

SHERWOOD, J.

The indictment in this cause, on which defendant was found guilty of burglary, acquitted of larceny, and his imprisonment assessed at three years' imprisonment in the penitentiary, is founded on section 3526, Rev. St. 1889, and is, in its charging portion, the following: "That Russell Taylor, late of the county of Johnson, and state of Missouri, on the 15th day of August, 1895, at the said county of Johnson, state of Missouri, did feloniously and burglariously break into and enter the store of W. T. Baker, there situate, the same being a building in which divers goods, merchandise, and valuable things were then and there kept for sale and deposited, with intent the goods, chattels, personal property, and valuable things in the said store then and there being feloniously and burglariously to steal, take, and carry away, and six pocketknives, of the value of three dollars, one pair of shoes, of the value of three dollars, and one plug of tobacco, of the value of thirty-five cents, of the personal goods of the said W. T. Baker, then and there in the said store 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 objected to because it contains no charge of any "felonious intent." This claim is not tenable. The indictment is in form and substance substantially identical with forms found in Chitty and Archbold. 3 Chit. Cr. Law, *1117; 2 Archb. Cr. Prac. & Pl. (Pom. Notes) 1071, 1075. Such form as above has been, in substance and effect, expressly approved by this court in several cases. State v. McGraw, 87 Mo. 161; State v. Shields, 89 Mo. 259, 1 S. W. 336; State v. Tyrrell, 98 Mo. 354, 11 S. W. 734. Besides, even if the felonious intent be not alleged, or insufficiently alleged, such defect will be cured by the subsequent allegation of the commission of a substantive felony after breaking and entering, which is the best evidence of, and decisive of, a felonious intent. Com. v. Brown, 3 Rawle, 207; Jones v. State, 11 N. H. 269; Com. v. Hope, 22 Pick. 1; 1 Hale, P. C. 560; 2 East, P. C. p. 514, c. 15, § 25; Rex v. Furnival, Russ. & R. 445; State v. Henley, 30 Mo. 509.

Mrs. W. T. Baker, the wife of the owner of the store, and the principal witness for the state, testified that on the evening before, when she left the store, she locked all the outside doors of the store and wareroom. The morning of the 15th of August, 1895, she was sleeping upstairs in the southwest room of her house. Was awakened by the noise of a passing wagon. It was too dark to tell what kind of a wagon it was, but thought from the noise it was a spring wagon. After the wagon passed, she sat down by the window, and in a few minutes saw a man going south on the road, past her house, though he was on the east side of the road. She got up; hunted for her dress; had difficulty in finding it; finally went downstairs and got a cape, and put it around her shoulders, and went down through the dining room, and out along the south porch, towards the store. When she got a little north of the store, she thought she heard a noise inside of the store. Sounded to her like the closing of a show case which stood on the north side of the storeroom near the west (front) end, in which were kept only ribbons and millinery goods. Then she went back to the house, and awakened Willie Garvey and Lucy and Cora Hackler. Mrs. Baker then went to the front of the store, so she could see the west end and south side. Sent Garvey around east end, so he could see east end and south side. In a few minutes defendant came out of the door on the south side, and near east end of the storeroom, one door of which was open. When defendant stepped out, Mrs. Baker said: "Russell, we have had enough of this. This has been going on long enough;" or "We have been deviled long enough." Defendant replied: "Mrs. Baker, I hope you don't think I am here to do...