The State v. Hammons
| Decision Date | 15 March 1910 |
| Parties | THE STATE v. LOME HAMMONS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Douglas Circuit Court. -- Hon. John T. Moore, Judge.
Reversed.
G. W Thornberry and A. H. Buchanan for appellant.
Ownership of the property on a charge of burglary and larceny must be alleged and proved. In this case the information charged the ownership to be in the estate of J. W. Johnson, deceased. That ownership cannot be charged in this way seems too clear to admit of argument, and while we have not been able to find a case decided by this court where ownership had been laid as in this one, we have found many cases where we think the doctrine is clearly announced that this information is bad and should have been quashed or the judgment arrested. And we find abundant authority elsewhere, where the question has been directly before the courts as here presented, and they uniformly hold that to charge ownership in the estate of a deceased person is fatal. Constitution, art. 2, sec. 22; State v. Ellis, 119 Mo. 437; State v Davis, 138 Mo. 107; State v. Jones, 168 Mo 398; State v. Horned, 178 Mo. 59; State v. James, 194 Mo. 268; State v. Kelley, 206 Mo. 685; 2 Bishop's New Crim. Proc., secs. 139 and 725; 22 Cyc., 353; People v. Hall, 19 Cal. 425; Beall v. State, 53 Ala. 460. There is not one particle of evidence upon which to base a conviction, and this court will discharge the defendant when there is a failure of evidence. State v. Nesenheuer, 164 Mo. 461; State v. Crabtree, 170 Mo. 642; State v. Morney, 196 Mo. 43; State v. Gordon, 199 Mo. 561.
Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
The information is valid, sufficient and properly charges the offense in the language of the statute. The building was alleged to belong to the estate of J. W. Johnson, deceased. This allegation designating the ownership, was sufficient. "In burglary, ownership means any possession which is rightful against the burglar." State v. McGuire, 193 Mo. 226; 2 Bishop's New Crim. Proc., sec. 137; Henderson's Case, 98 Va. 794; State v. Frank, 64 Ia. 42; R. S. 1899, sec. 1886; Hale's P. C., 552; Chitty on Criminal Law. It is true, the common law requires that the indictment for burglary must lay with precision the ownership of the house in which the offense has been committed, and the proof must conform to the averment. Beall v. State, 53 Ala. 461; 2 Lead. C. R. Cases, 53; 2 Bishop's Crim. Proc., secs. 135-6-7-8; 2 Wharton's Am. Crim. Law, sec. 1555; 1 Russ. Crimes, 806. But it has been held in this State that the gist of the offense of burglary consists in the breaking and entering the house with the intent to steal. State v. Hutchinson, 111 Mo. 357; State v. Tyrrell, 98 Mo. 354. In the latter case it is held by the court that although the ownership of the property be laid in a certain person, it is immaterial that upon the trial the property is shown to belong to another. "Ownership," says Bishop in his work on Criminal Procedure (vol. 2, secs. 137, 138), And he cites in support of his text, State v. Gilligan, 50 A. 844, and Trice v. State, 116 Ga. 602. In Pennsylvania it was held that "ownership" means title to property. Hill v. Cumberland Co., 59 Pa. St. 474; R. S. 1899, sec. 2534; State v. Rand, 33 N.H. 216; Commonwealth v. Hamilton, 15 Gray 480; R. S. 1899, sec. 2908.
On the 25th of September, 1908, the prosecuting attorney of Douglas county, began this prosecution by information, charging the defendant with burglary and larceny in having broken into, in the nighttime, and stolen from the storehouse belonging to the estate of J. W. Johnson, deceased, located in the town of Gardner, in Douglas county, on the night of the 10th of August, 1908, about ten dollars lawful money of the United States belonging to the postoffice at Gardner, and between five and ten dollars in money and some other personal property belonging to the estate of J. W. Johnson, deceased. The defendant was arrested and on the 31st of March, 1909, filed his motion to quash said information on the ground that same did not state any offense against the laws of the State of Missouri, nor designate the ownership of the building alleged to have been burglarized, nor the goods and wares taken therefrom, nor who was the owner of or in possession of said storehouse, or the said goods and wares, and because the information did not advise the defendant of the nature and cause of the accusation against him. This motion to quash was overruled and the defendant duly excepted at the time. Thereafter he entered his plea of not guilty and at the same term of court was put upon his trial for burglary and larceny and convicted of burglary alone and his punishment assessed at three years in the penitentiary.
It appears from the evidence that the storehouse and postoffice building in which the alleged burglary was committed had formerly belonged to a man by the name of J. W. Johnson, who had died November 25, 1907, and that the burglary occurred on the night of August 10, 1908. The postoffice at Gardner was kept in this store building. There were a number of articles, including a lot of shoes, some razors, pocket-knives, cloth and twenty-five or thirty dollars in money, the latter consisting largely of quarters, dimes, nickels, and pennies, stolen and taken away. Defendant was at the store the day before the burglary and traded two chickens for some soap, soda, tobacco and cartridges. He lived about four miles from the store. On this occasion Miss Oma Johnson, a daughter of the deceased merchant, waited on him, and they agreed entirely as to the character of his purchases, except she did not remember that he bought a nickel's worth of cartridges, number 38, but on the preliminary trial she testified that she would not swear that he did not buy the cartridges. Defendant had traded at this store for four or five years, and always paid his bills there, as well as at other stores in the neighborhood. In payment for his purchases on this occasion he tendered Miss Johnson a ten-dollar bill, and she gave him back change to the amount of $ 9.80, after crediting him with the value of his two chickens. It seems that on Thursday after this burglary on Monday night, one Henry Strong, who had been called in by the constable to assist in searching for the stolen goods, found a piece of cloth, which was identified as a part of the stock of the Johnson store, in an open woods, some two hundred and fifty to four hundred yards distant from the defendant's house and on land owned by the grandfather of the defendant. The land on which the cloth was found was not in the possession of the defendant and was not inclosed but lay along the public highway. Having found this piece of cloth, the constable obtained a search warrant and searched the defendant's house on Thursday morning after the burglary on Monday night. No property of any kind was found hidden or smuggled about the premises or answering to the description of the stolen goods. The searching officer found some money in a cloth sack or poke, consisting of a five-dollar bill, nine silver dollars, four half dollars, five quarters, nine dimes and thirty-eight nickels. As the search warrant did not call for the bill, or the silver dollars, the justice required the constable to return the five-dollar bill and six of the silver dollars to the defendant. The other money was on hand at the time of the trial in the possession of the constable. The constable also found five number 38 cartridges lying in an open plate in an open cupboard in the defendant's house.
There was a mass of immaterial evidence injected into the case as to the defendant's ownership of money about that time, and it was developed that in June the defendant had sold a cow for eighteen dollars, and some weeks earlier a calf for six dollars, and that he usually paid for his groceries with his poultry and eggs. It was also shown that he traded in furs and pelts. It would serve no good purpose to repeat this great mass of unsatisfactory testimony.
At the close of the testimony the defendant requested the court to instruct the jury to acquit him, which the court refused.
The court instructed the jury that: "if they find from the evidence that the defendant, in the county of Douglas and State of Missouri, on or about the 10th of August, 1908, did willfully and unlawfully break into and enter a certain storehouse there situate and that the said storehouse was at the time in the possession of the widow and heirs of J. W. Johnson, deceased, and took, stole and carried away the property, etc., they would find him guilty and assess his punishment. The jury found the defendant guilty of burglary alone, and after unsuccessful motions for new trial and in arrest of judgment, he was sentenced.
I. The crucial question in this case is whether there was any substantial evidence upon which to submit the guilt or innocence of the defendant to the jury.
The defendant was a young married man and lived with his wife and two small children about four miles from the town of Gardner in Douglas county. On the night of the 10th of August, 1908, the store in which the postoffice was kept in Gardner was burglarized, and some goods and wares therein and the moneys belonging to the store and to the postoffice were stolen. After the burglary, a searching party, it would seem, found a piece of cloth in the neighborhood where the defendant lived, in a hollow log about four hundred yards from the defendant's house. This log was...
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