The State v. Delcore
| Decision Date | 20 November 1906 |
| Citation | 97 S.W. 894,199 Mo. 228 |
| Parties | THE STATE v. DELCORE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Lawrence Circuit Court. -- Hon. F. C. Johnston, Judge.
Affirmed.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) Defendant complains that the court did not fully instruct the jury on all the applicable points to the case. But as he made no objections to such failure at the time and failed to except at the time, such alleged error has been waived. And the point has also been waived by failing to assign the same as error in the motion for a new trial. State v Cantlin, 118 Mo. 111; State v. Albright, 144 Mo. 638; State v. Waters, 139 Mo. 539. (2) The evidence was sufficient to justify the jury in convicting the defendant of both burglary and larceny. State v James, 194 Mo. 277; State v. Warford, 106 Mo 55; 1 Greenl. on Evidence, sec. 33; 1 Wigmore on Evidence, sec. 153; 4 Wigmore on Evidence, sec. 2513; 4 Elliott on Evidence, sec. 2712; Underhill on Crim. Evid., sec. 299.
This is an appeal from a judgment of the circuit court of Lawrence county rendered on November 25, 1905, upon the verdict of a jury finding the defendant guilty of burglary and larceny, and fixing his punishment at five years in the penitentiary, under an information filed by the prosecuting attorney of said county charging him with said offenses.
The building alleged to have been burglarized belonged to a firm composed of R. L. Adams and Frank Adams, in which was kept by them a saloon. The property alleged to have been stolen was $ 16.20 in money, one revolver of the value of fourteen dollars and a lot of whiskey of the value of fifteen dollars, belonging to said firm. The date of the alleged offense was the -- day of April, 1905. At the November term, 1905, of said court, the defendant was tried and convicted of both burglary and larceny; his punishment for the burglary was fixed at three years in the penitentiary and his punishment for the larceny was fixed at two years in the penitentiary.
The State's evidence tended to prove that R. L. Adams and Frank Adams were engaged in the saloon business in the city of Aurora, in Lawrence county, which business was conducted in one of the rooms of the Aurora hotel and conducted under the name of R. L. Adams & Co. This saloon faces west on McNatt avenue, and has a window on the north side. On Saturday night, April 8, 1905, this saloon was closed at twelve o'clock, and the bartenders and proprietors left. They left ten dollars in the cash register in said saloon also a pistol, worth fifteen dollars. The window on the north side was closed and the sash was fastened down with an ordinary window fastener. On Sunday morning, R. L. Adams and one of the bartenders went to the saloon and discovered that $ 6.30 had been taken from said cash register. The evidence further showed that a lot of whiskey was kept in pint, half-pint and quart bottles in a case behind the bar. The whiskey and pistol were not then missed, and the window was not discovered to be open till the next morning. On Monday morning early Mr. Adams discovered that a number of these bottles of whiskey, worth fifteen dollars, had been taken; and the pistol was also gone. The $ 3.70 that was in the cash drawer on Sunday had also disappeared. The window on the north side of the saloon had been raised, and was held up by means of a beer bottle that was under it. Some of the missing whiskey was "Autocrat," and each bottle had a correct label on it, and no other saloon in that city sold that brand. The proprietors and bartenders all testified that they did not sell defendant nor Frank Butler any "Autocrat" whiskey on either Saturday or Sunday. On Sunday morning, between eight and ten o'clock, defendant met Rube Paul, handed him a quart bottle and asked him to take a drink of whiskey. Paul took a drink, and defendant said he had some money; and, on being asked where he got the money, he said, "The money and whiskey all came from the same place." The night watchman saw defendant and Butler together at the depot in Aurora between eleven and twelve o'clock Saturday night; they disappeared from the depot a few minutes before twelve. He also saw defendant at said depot on Sunday night between ten and eleven o'clock. Other witnesses testified to seeing defendant and Frank Butler sitting on the sidewalk in front of said saloon about 12 o'clock Saturday night, after said saloon had been closed. On Sunday morning, between five and six o'clock, defendant and Frank Butler were together near this...
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