State v. Watson

• Decision Date: 09 November 1897
• Citation: 42 S.W. 726,141 Mo. 338
• Parties: The State, Appellant, v. Watson et al
• Court: Missouri Supreme Court

42 S.W. 726

141 Mo. 338

The State, Appellant, v. Watson et al

Supreme Court of Missouri, Second Division

November 9, 1897

Appeal from Bollinger Circuit Court. -- Hon. James D. Fox, Judge.

Reversed and remanded.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for appellant.

(1) The indictment is sufficient under the following cases: State v. Tyrrell, 98 Mo. 354; State v. Edwards, 109 Mo. 316. (2) Now the addition here is simply the word "granary" to the word "warehouse," and I take it that the word "granary" is simply descriptive of the character of the "warehouse." And if this be true, under the decisions in this State the indictment is certainly good.

W. K Chandler and Moses Whybark for respondent.

The indictment as to the burglary count was properly quashed, and the court committed no error in sustaining the motion. State v. Schuchmann, 133 Mo. 111; State v. South 136 Mo. 673.

Gantt P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This cause is here on an appeal by the State from a judgment quashing the following indictment, to wit:

"The grand jurors for the State of Missouri, now here in court, duly impaneled, sworn and charged to inquire within and for the body of the county of Bollinger and State of Missouri, upon their oath do present and charge that John Watson and Samuel Hedges, on or about the 9th day of November, A. D. 1895, at and in the county of Bollinger and State of Missouri, did then and there unlawfully, willfully, feloniously and burglariously break into and enter the granary warehouse and building of one George Winchester, 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 the intent certain of the said goods, wares, merchandise and valuable things then and there so kept and deposited, unlawfully, willfully, feloniously, and burglariously to take, steal and carry away, and fourteen bushels of wheat of the value of $ 8 of the personal goods of the said George Winchester, then and there in the said granary, warehouse and building being found, did then and there feloniously and burglariously steal, take and carry away, against the peace and dignity of the State.

"Joseph W. Caldwell,

"Prosecuting Attorney for Bollinger county, Missouri."

The motion to quash was duly excepted to and saved in a bill of exceptions. The motion to quash assigns as grounds that the indictment is vague and indefinite in the description of the building in which the burglary was committed and it is uncertain from its averments whether it is the kind of building a breaking and entering of which would constitute burglary under our statute.

The defendant, in support of the ruling of the circuit court, relies upon the decisions in State v. Schuchmann, 133 Mo. 111, 33 S.W. 35, 34 S.W. 842, and State v. South, 136 Mo. 673, 38 S.W. 716, whereas the Attorney-General insists that these decisions do not justify the ruling.

In State v. Schuchmann, 133 Mo. 111, 33 S.W. 35, 34 S.W. 842, it was held that "a certain chicken house building" in which divers live chickens were kept was not such a building as was contemplated by the statute in defining burglary in the second degree, not being ejusdem generis with the building therein enumerated. R. S. 1889, sec. 3526. In State v. South, 136 Mo. 673, 38 S.W. 716, it was held that "a barn" was not ejusdem generis with said buildings enumerated in said section.

In this indictment the pleader charges the burglary in the "granary warehouse and building of one George Winchester there situate, the same being a building in which divers goods, merchandise and valuable things were then and there kept for sale and deposited." It can not be said of this indictment that it does not describe such a building, to wit a "warehouse," as is expressly named in the statute, nor that it fails to add the descriptive phrase used by the statute, to wit, "in which divers goods, wares and merchandise were kept for sale and...