State v. Young

• Decision Date: 22 November 1939
• Docket Number: 36764
• Parties: The State v. Tom Young, Appellant
• Court: Missouri Supreme Court

133 S.W.2d 404

345 Mo. 407

The State v. Tom Young, Appellant

No. 36764

Supreme Court of Missouri

November 22, 1939

Appeal from Circuit Court of City of St. Louis; Hon. Frank B Coleman, Judge.

Reversed and remanded.

Roy McKittrick, Attorney General, and Tyre W Burton, Assistant Attorney General, for respondent.

There was sufficient evidence to support the verdict. State v. Gregory, 96 S.W.2d 53, 339 Mo. 133; State v. Hedges, 295 S.W. 576; State v. Warford, 106 Mo. 60, 16 S.W. 886; State v. Wurtz, 11 S.W.2d 1029.

OPINION

Ellison, P. J.

The appellant was convicted in the Circuit Court of the City of St. Louis under the Habitual Criminal Act of burglary in the first degree and larceny and his punishment assessed at twenty years' imprisonment in the penitentiary for the burglary and five years for the larceny. He introduced no evidence in the circuit court and has filed no brief here. The assignments in his motion for new trial below complained of the overruling of his demurrer to the State's evidence, and of the admission of incompetent evidence.

The evidence for the State showed that about 3:30 a.m. on the night of May 4, 1937, at a dwelling house at 3035 Franklin Avenue, St. Louis, Miss Dorothy Walton was awakened by the light from a shaded table lamp in the hall coming through the opened door into her bedroom. The door had been closed and the light out when she retired about 9:30 P. M. She saw the figure of a man standing near her dresser, and at once turned on a light in her room, and called out to her landlady. The man faced her and she got a good look at him. He fled. Her driver's license, a door key and thirty-five cents, all of the value of about one dollar, were missing, and her pocket book was found on the floor in the hall. The outside windows and doors had been closed and fastened the night before according to the testimony of Miss Walton and the landlady. The front door was locked with a Yale spring lock. After the burglar fled this door was found open. There was no evidence that the lock had been broken or damaged. At the trial Miss Walton positively identified the appellant as the burglar.

Appellant did not attack the information on the ground about to be mentioned at the trial or in his motion for new trial. But under Section 3760, Revised Statutes 1929 (Mo. Stat. Ann., p. 3298) it is our duty to determine whether it sufficiently charges the crimes of which appellant was convicted. This, of course, refers to essential averments. [State v. Couch, 344 Mo. 78, 124 S.W.2d 1091; State v. Boyer, 342 Mo. 64, 69, 112 S.W.2d 575, 579(3); State v. Emry (Mo. Div. 2), 18 S.W.2d 10, 12(5).] As already stated, the conviction was for burglary in the first degree and larceny, under the Habitual Criminal Act. In consequence, he received the maximum punishment for each. [Sec. 4461, R. S. 1929, Mo. Stat. Ann., p. 3063.] This punishment aggregated twenty-five years' imprisonment in the penitentiary, whereas, if the conviction had been for burglary in the second degree and larceny it would have been only fifteen years. [Secs. 4053, 4056, R. S. 1929, Mo. Stat. Ann., pp. 2853, 2854.] The question whether the information adequately charged burglary in the first degree therefore became one of importance. The statute defining that crime, Section 4042, Revised Statutes 1929 (Mo. Stat. Ann., p. 2846), is as follows:

"Every person who shall be convicted of breaking into and entering the dwelling house of another, in which there shall be at the time some human being, with intent to commit some felony or any larceny therein, either: First, by forcibly bursting or breaking the wall or outer door, window or shutter of a window of such house, or the lock or bolt of such door, or the fastening of such window or shutter; or, second, by breaking in any other manner, being armed with some dangerous weapon, or with the assistance and aid of one or more confederates, then actually present, aiding and assisting; or third, by unlocking an outer door by means of false keys, or by picking the lock thereof, shall be adjudged guilty of burglary in the first degree."

The statute was construed in State v. Wilson, 225 Mo. 503, 513, 125 S.W. 479, 482, and State v. Tutt, 63 Mo. 595, 601, and the rule announced: "It is evident, however, that our statute did intend to make a change (from the common law), not that any entering and breaking, which at common law was burglary, is not still burglary under our statute; but those cases of breaking and entering at common law, which were effected in other modes than those specified in the tenth section (Wagn. Stat., p. 454, now Sec. 4042, supra), are now burglary in the second degree under the eleventh and succeeding sections of the statute. An indictment for burglary in the first degree under the tenth section must state, not only the breaking and entering into a dwelling house in which at the time there was a human being, with intent to commit some felony or larceny, but that such breaking and entering was effected in one of the modes specified in that section. The manner of the breaking into a dwelling house is one of the ingredients of burglary in the first degree. (Parenthesis and italics ours.)

The part of the information in this case charging the breaking and entering is as follows: "with force and arms into a certain dwelling house and building of Dorothy Walton, located at No. 3035, Franklin Avenue, there situate and being, and in which said dwelling house and building there was at the time a human being, feloniously and burglariously, forcibly did break and enter, by then and there feloniously and forcibly entering the front door, with the felonious intent" -- to commit a larceny. It will be noticed the only charge is that appellant broke into the house by "feloniously and forcibly entering the front door." It does not charge a forcible bursting or breaking of the door or the lock or bolt thereof, under the first subdivision of the section; nor an unlocking of the door by means of false keys or by picking the lock, under the third subdivision. While the information may be sufficient to charge burglary in the second degree, we are forced to hold it is fatally defective as a charge of burglary in the first degree.

While the Wilson and Tutt cases, supra, have not been cited in subsequent Missouri decisions on the point here under discussion, neither have they been questioned or overruled. The Tutt case after mature consideration overruled State v. Alexander, 56 Mo. 131, and followed two New York decisions, from which State our first degree burglary statute was taken; People v. Fellinger, 24 How. Prac. 341, 15 Abbot's Prac. 128; People v. Bush, 3 Parker's Crim. Rep. 553. Further, it was ruled in Harris v. People, 44 Mich. 305, 307, 6 N.W. 677: "The various breakings resembling burglary which have been declared criminal by the Legislature, are distinguishable from the ancient offense of the common law. They owe their definition to the statute, and the statute must be consulted to ascertain their ingredients. When they are charged they must be set forth in substance, as in the statute, with all descriptive incidents, whether negative or otherwise." [See also 2 Wharton's Criminal Law (12 Ed.), sec. 1032, p. 1317.]

Since the case must be reversed and remanded we shall touch upon three questions that may recur on a new trial. Appellant says the evidence was insufficient to support a conviction because Miss Walton's identification testimony was based on a view of him "merely for a fleeting moment in a state of mental tension." We have heretofore conceded this fact weakens the force of such testimony. [State v. Scobee, 331 Mo. 217, 228, 53 S.W.2d 245, 251(3).] But it is not for that reason wholly without substance. As to the nature and elements of this kind of evidence see 20 Am. Jur., secs. 350, 380, pp. 325, 739; 16 C. J., sec. 1050, p. 547; State v. Blackmore, 327 Mo. 708, 715, 38 S.W.2d 32, 34(2).

Furthermore, there is no direct testimony that Miss Walton was highly excited when she saw the appellant, or that he fled instantly when she turned on the light in her room. She testified he looked at her about a minute. She could switch on the light from the head of her bed -- that is to say, without getting up or moving about much in the dark, thereby giving him warning. We have as much right to infer he was startled and slow in getting away when the light came on as that she was deprived of the use of her faculties. The evidence indicates she acted intelligently. She identified the appellant positively. We think the question clearly was for the jury. And the same may be held without discussion of her testimony concerning the closing of the doors and windows. Though there was some contradiction between what she said and the testimony of the landlady, Mrs. Nichols, concerning whether they were together when the tour of inspection was made, yet both agreed that the windows and doors were closed and fastened.

Again the information charged that the appellant entered the house through the front door. There was, as just stated, evidence that all the doors and windows had been closed and fastened when the three members of the household retired for the night. Two witnesses said the Yale lock on the front door was snapped on. The landlady testified she had not given anyone permission to enter the premises by pass key or otherwise except Miss Walton and her other roomer. The front door was found open a few minutes after the burglar fled. There was no testimony that either the door or the lock was damaged; and no direct evidence showing how entry had been effected. Nevertheless there undoubtedly was enough circumstantial evidence to show a burglarious entry at common law or on a charge of burglary in the...