The State v. Goddard

• Decision Date: 20 December 1926
• Docket Number: 27514
• Parties: The State v. William S. Goddard, Appellant
• Court: Missouri Supreme Court

289 S.W. 651

316 Mo. 172

The State v. William S. Goddard, Appellant

No. 27514

Supreme Court of Missouri

December 20, 1926

Appeal from Cape Girardeau Circuit Court; Hon. Frank Kelly Judge.

Reversed and remanded.

M. E Montgomery and M. G. Gresham for appellant.

(1) Before a conviction can be upheld the evidence must show that the crime charged has been committed by someone, and the criminal agency of the defendant in its commission. State v. Scott, 39 Mo. 424; State v. Bowman, 243 S.W 110; State v. Joy, 285 S.W. 489; State v. Knolle, 90 Mo.App. 238; State v. Counts, 234 Mo. 580; State v. Rutledge, 262 S.W. 718; State v. DeWitt and Jones, 191 Mo. 51; State v. Hammons, 226 Mo. 604; State v. Madison, 177 S.W. 347. (a) And a suspicion that defendant committed the crime charged, however strong, will not support a conviction. State v. Morney, 196 Mo. 43; State v. Francis, 199 Mo. 671; State v. Young, 237 Mo. 170; State v. Johnson, 209 Mo. 346; State v. King, 174 Mo. 647. (b) An extra-judicial confession of the defendant will not support a conviction in the absence of other proof of the corpus delicti. State v. Mullinix, 257 S.W. 121; State v. Bowman, 243 S.W. 110; Robinson v. State, 12 Mo. 596. (2) It was reversible error to permit the State's witness to testify that he saw the defendant committing a burglary about three weeks prior to the offense for which defendant was being tried. State v. Spray, 174 Mo. 569; State v. Dixon, 253 S.W. 746; State v. Saunders, 232 S.W. 973; State v. Austin, 234 S.W. 802; State v. Stetson, 222 S.W. 425; State v. Barker, 249 S.W. 75; State v. Fenley, 275 S.W. 41; State v. Calbert, 282 S.W. 106. If such testimony was properly admitted for any purpose it was error for the court to fail to give the jury an instruction limiting the consideration of that testimony to the purpose for which it was competent. State v. Gaede, 186 S.W. 1009; State v. Young, 266 Mo. 723; State v. Madison, 177 S.W. 347; State v. Wilson, 223 Mo. 156; State v. Smith, 250 Mo. 350; State v. Turley, 142 Mo. 403.

North T. Gentry, Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.

(1) There is no evidence of any breaking; the proprietors of the store testified that the doors were locked when they left the evening before the alleged burglary, and that the next morning after the alleged burglary the doors were closed and locked. There is no evidence that there was any breaking through the windows or otherwise. (2) There is no evidence that any goods were missing from the stock of merchandise. The sack found in the possession of the defendant contained articles having on them the cost marks of the store. But now the defendant is charged with burglary, not larceny. The question is, was there any substantial evidence to show such a breaking and entering as to constitute burglary? "It will be observed that the essential elements of the offense provided by that section are: First, there must be a breaking into a building of the character mentioned in the statute." State v. Taylor, 186 Mo. 613. "To prove the corpus delicti, the evidence must be sufficient to show affirmatively and beyond a reasonable doubt that there was such a breaking and entering as are necessary to constitute burglary." 9 C. J. 1076. (3) As to the evidence about the defendant being in the store building at 2:30 o'clock at night three weeks before the date of the burglary, relied upon by the State. The only purpose of this testimony was to show the jury that the defendant had on a previous date unlawfully entered the store. There was an instruction informing the jury that the purpose of the testimony was to show the intent on the part of the defendant. On a charge of burglary, "the act of the defendant, if he committed it, needed no explanation to indicate intent." The act itself carried the intent with it. State v. Spray, 174 Mo. 585. "The State cannot prove against a defendant any crime not alleged either as foundation for a separate punishment, or as aiding the proofs that he is guilty of the one charged, even though he has put his character in issue." State v. Spray, 174 Mo. 576; State v. Dickson, 253 S.W. l. c. 748.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On November 2, 1925, the Prosecuting Attorney of Scott County, filed in the circuit court of said county a verified information which, omitting formal parts, reads as follows:

"Now comes Stephen Barton, Prosecuting Attorney within and for the County of Scott, who in this behalf prosecutes for and in the name of the State of Missouri, and upon his official oath and upon his hereunto appended oath, informs the court, and does present, aver and charge that the said defendant, William Goddard, on or about the 30th day of August, a. d. 1925, at the said County of Scott, in the State of Missouri, did feloniously and burglariously break into and enter the store of and owned by T. A. Essner and J. F. Diebold, doing business under the firm name of Essner Brothers & Company, 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, merchandise and valuables in the said store then and there being, then and there feloniously and burglariously to steal, take and carry away; and thirteen pounds of bacon of the value of forty cents per pound, one jar of jelly and one jar of jam of the value of thirty-five cents each; two cans of corn of the value of twenty cents each, two dozen oranges of the value of fifty cents per dozen, and two boxes of graham crackers of the value of ten cents per box, all of the aggregate value of seven dollars and fifty cents, of the personal goods and property of the said T. A. Essner and J. F. Diebold, then and there in the said store being, did then and there feloniously and burglariously steal, take and carry away; contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State."

On defendant's application, a change of venue was granted and the cause transferred to the Circuit Court of Cape Girardeau County, where it was tried before a jury. On April 26, 1926, defendant was arraigned in the last named court and entered a plea of not guilty. Thereafter, on the same day, the following verdict was returned:

"We, the jury find the defendant William Goddard guilty of burglary as charged and we assess his punishment by imprisonment in the penitentiary for a term of two years, and find the defendant guilty of larceny in connection with the burglary and in addition to the punishment for burglary we assess his punishment for a term of two years."

Thereafter, in due time, defendant filed his motion for a new trial, which was overruled on May 3, 1926. On May 7, 1926, defendant filed his motion for a reduction of sentence, which was sustained. It was indorsed and recommended by the prosecuting witnesses in the case, and the prosecuting attorney. On the same day, allocution was granted, judgment rendered and sentence pronounced for burglary, and the punishment fixed at two years in the penitentiary. The prosecuting attorney waived the larceny charge. An appeal was allowed defendant to this court.

The testimony is fairly stated by counsel for respondent, as follows:

"The evidence of the State was to the effect that the store charged to have been burglarized was located in the town of Chaffee; that it was a large store containing about $ 25,000 worth of goods, general merchandise; that about six o'clock on the morning of August 30, 1925, a witness standing across the street from the store saw some man approaching the front entrance to the store; that this man walked into an off-set, the doors to the building being set back about five feet from the front line of the building. This witness did not see the man enter the store and did not know whether he went in or not. The witness then went to the residence of the police judge close by and told him that there was some one in the store building. The police judge got up and dressed hurriedly and came out on the street with a revolver in his hand and recognized the man who was then standing on the sidewalk as this defendant. The man with the gun testified that the defendant had a sack on his shoulder and was looking up and down the street. When the police judge appeared with his revolver, the defendant ran around the corner of the store and dropped the sack and continued running until he was out of sight. The officer followed him and when he came close to the building where the defendant was hiding, the defendant said, 'Don't shoot, I am coming out.' The officer arrested him and put him in jail, then came back and found the sack which, when opened was seen to contain a piece of Swift's bacon, some canned goods, and jars of jelly. A clerk in the store testified that the marks on these various articles were put there by him to show the cost price of the articles; that they resembled the goods carried in stock in the store. The witness who testified to seeing this man about six o'clock in the morning, also testified that prior to that time, about four o'clock the same morning, he saw some man go into the front entrance of the store building; that he heard the door slam; that he did not know who it was who went in and did not pay any attention to it at that time.

"The time of the above occurrence was definitely fixed by all the witnesses as the morning of the 30th day of August.

"Another witness was permitted to testify that three weeks prior to that time he was passing this store at 2:30 o'clock at night and saw this defendant in the store building. The defendant objected to the introduction of this testimony for the reason that it was an attempt to...