State v. Wilson

• Decision Date: 12 February 1910
• Citation: State v. Wilson, 225 Mo. 503, 125 S.W. 479 (Mo. 1910)
• Parties: THE STATE v. SOLOMON WILSON, Appellant
• Court: Missouri Supreme Court

125 S.W. 479

225 Mo. 503

THE STATE v. SOLOMON WILSON, Appellant

Supreme Court of Missouri, Second Division

February 12, 1910

Appeal from Clinton Circuit Court. -- Hon. A. D. Burnes, Judge.

Affirmed.

Frost & Frost for appellant.

(1) The verdict was the result of passion and prejudice on the part of the jury. The defendant was a negro and had been convicted of petit larceny when he was ten years of age. The identification was by a dim lamp light turned down half way and during a hurried scuffle. Mrs. Daniel, one of the two identification witnesses, identified him because of a family resemblance between him and his mother and sister. In face of the poor opportunity for identification by the witnesses for the State, 23 witnesses testified to an alibi on the part of the defendant, who knew him and had every opportunity to observe, and stated that he went to and was at St. Joseph, at the time of the alleged burglary, and no jury was authorized to disregard such a mass of testimony, and because of their prejudice and passion find a verdict against an accused man. (2) The evidence tended to prove (if there had been evidence of breaking) a burglary in a dwelling-house in which there was at the time a human being and with intent to commit a larceny therein. This constituted burglary in the first degree. Revised Statutes 1899, section 1880. And as burglary in the first and second degree are separate and distinct offenses, one cannot be found guilty of burglary in the second degree where evidence goes to prove burglary in the first degree. State v. Alexander, 56 Mo. 131. (3) There is absolutely no proof whatever, inferentially or otherwise, that a burglary was committed. The prosecuting witness it seems purposely refrained from saying the doors were closed that night, that is the outer doors, and there is no proof whatever that they were closed that night. The alleged crime was in the heat of summer time; and the courts will certainly not indulge the presumption that they were closed, in order that the State's conviction may be upheld. The breaking out certainly did not constitute burglary. One who enters a house through an open door or window is not guilty of burglary, and where there was no evidence that the outer door was closed, the proof of burglary fails. There is absolutely no proof of the corpus delicti. State v. Kennedy, 16 Mo.App. 287; Loudar v. State, 63 Ala. 143; Williams v State, 52 Ga. 580; Green v. State, 68 Ala. 539; State v. Warford, 106 Mo. 55. The elements constituting the corpus delicti in the crime of burglary are a forceable breaking, and entry, and with intent to steal or commit a felony. The corpus delicti must be proven in every case before a conviction can be sustained. State v Knolle, 90 Mo.App. 230; State v. Jones, 106 Mo. 312; Wigmore on Evidence, sec. 2072; State v. Henderson, 186 Mo. 483. What right has a jury to say that the person who entered the house of the prosecuting witness did not do so through an open door, as there is not one syllable of evidence that the door was closed? (4) While burglary and larceny may be charged in the same count of the information, they are distinct offenses. State v. Martin, 79 Mo. 34; State v. Owens, 79 Mo. 625. Where larceny is committed in perpetration of burglary, value of goods need not be stated, as it is immaterial, but unless the defendant is found guilty of the burglary the value of the goods must be stated, and if larceny is proven it is petit or grand according to the value of the goods taken. State v. Davis, 73 Mo. 131; State v. Beckworth, 66 Mo. 82. Larceny in dwelling house it is true is grand without regard to value taken. State v. Kennedy, 66 Mo. 343. Yet the punishment for such larceny is regulated by the amount stolen, and when the value of the property amounts to less than thirty dollars, punishment may be as low as one day in county jail. There being no proof of burglary the court's instruction and the jury's verdict are erroneous. R. S. 1899, sec. 1900, 1901; State v. Brinkley, 148 Mo. 37; State v. Barker, 64 Mo. 282. It was then the duty of the court to have informed the jury that they might find the defendant guilty of burglary and not of larceny, or that they might find him guilty of both, or that they might find him not guilty as to the burglary and guilty as to larceny, in which latter case the court should have further instructed as to the different grades of punishment for larceny in dwelling house. State v. Nicholas, 222 Mo. 425. The defendant called the court's attention to the fact that it had not instructed on all points of law in the case. State v. Brinkley, 146 Mo. 37.

Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.

(1) The distinction between burglary in the first and second degree, as created by sections 1880 and 1881, R. S. 1899, does not depend solely upon the question as to whether there was in the dwelling-house a human being. The degree also depends upon the manner in which the breaking and entering is accomplished. If "by forcibly bursting or breaking the wall or outer door, window or shutter of a window, or the lock or bolt of such door, or the fastening of such window or shutter, or by being armed with some dangerous weapon, or with the aid and assistance of confederates, actually present, aiding and assisting, or by unlocking an outer door by means of a false key or picking the lock," it is burglary in the first degree. To make out an offense under this section, it is just as necessary to prove that the breaking was accomplished by one of the modes specified in this section, as that it was in the nighttime or that there was a human being in the house. State v. Tutt, 63 Mo. 600; R. S. 1899, sec. 1880. Without proof of one of the modes specified, the offense is but burglary in the second degree. R. S. 1899, sec. 1881. The evidence in this case discloses that the breaking was not effected by any of the modes specified in section 1880, but by removing a wire screen from the window. (b) But let it be conceded that the evidence does tend to establish the offense of burglary in the first degree, defendant cannot complain at his conviction of the lesser crime. The prosecuting power may select for conviction any one of the offenses of which his acts make defendant guilty, and he cannot object that his guilt covers a larger and different crime. Since the case of State v. Hamey, 168 Mo. 200, this rule has been uniformly applied in this State, and in fact, was recognized in cases of this character long prior to that time. State v. Keeland, 90 Mo. 337; State v. Wagner, 78 Mo. 644; State v. Smith, 190 Mo. 718; State v. Bobbitt, 215 Mo. 8; State v. Schieller, 130 Mo. 510; State v. Lowe, 93 Mo. 574; Sec. 2369, R. S. 1899; R. S. 1899, sec. 2535. (2) The court cannot disturb the verdict on the ground of insufficiency of evidence unless a new rule is to be established in this State. State v. Matthews, 202 Mo. 147; State v. McCullough, 171 Mo. 574; State v. Tetrick, 199 Mo. 100; State v. DeWitt, 152 Mo. 76. There is substantial evidence tending to prove a breaking. State v. Moore, 117 Mo. 403; State v. Henderson, 212 Mo. 208. (3) The only serious question presented by this record is whether the court erred in not instructing the jury that defendant could be convicted of the crime of larceny alone. The offense charged in the information, and upon which defendant was tried and convicted, was that of burglary and larceny. If the cases of State v. Hecox, 83 Mo. 531, and State v. Brinkley, 146 Mo. 37, correctly declare the law in this respect, the instruction on larceny and its degrees should have been given. In our opinion, however, defendant is in no position to complain, since he in no manner directed the attention of the trial court to this phase of the case, or requested an instruction touching it. State v. Espenschied, 212 Mo. 222. The point is not more definite in the motion for a new trial, and is entirely too indefinite to be available in this court. It is a firmly established rule in this State that when the instructions of the court are read to the jury, and the defendant desires further instructions, or deems it necessary that such be given, it is his duty, in fairness to the court, to call its attention to such questions and specifically request such instructions. State v. Bond, 191 Mo. 555; State v. McCarver, 194 Mo. 742; State v. West, 202 Mo. 137.

OPINION

FOX, J.

The defendant has brought this cause to the Supreme Court by appeal from a judgment of the circuit court of Clinton county, Missouri, convicting him of the offense of burglary and larceny.

On August 28, 1907, the prosecuting attorney of Clinton county filed an information, which was duly verified, charging the defendant with the crime of burglary and larceny. Following this there were three trials, in each of which the jury was unable to agree. The trial which resulted in the judgment now before the court for consideration was the fourth trial. The testimony developed upon the trial was substantially as follows:

On the part of the State, Dr. Courtwright testified that on Tuesday night, between one and two o'clock, August 6, upon being aroused by a noise in his sleeping room, he saw a man crouched at the dresser, and immediately jumped from his bed toward the burglar, who thereupon ran into another room where all the windows were screened. From this room he ran into the sitting room, where a bright light was burning. When he reached this room, he and witness met and a struggle between the two followed, during the course of which they fell to the floor several times. The burglar finally forced his way into another room, where a window was open, the screen having been theretofore removed, and through this window...