The State v. Henderson
| Decision Date | 19 May 1908 |
| Citation | 110 S.W. 1078,212 Mo. 208 |
| Parties | THE STATE v. E. D. HENDERSON and W. M. YOUNGER, Appellants |
| Court | Missouri Supreme Court |
Appeal from Ralls Circuit Court. -- Hon. D. H. Eby, Judge.
Affirmed.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) The indictment is sufficient in form and substance. State v James, 194 Mo. 269; State v. Watson, 141 Mo 338; Kelley's Crim. Law, sec. 609; R. S. 1899, sec. 1891. (2) In their motion for a new trial, the defendants do not assign as error the admission of improper evidence, nor the refusal to admit proper evidence. So the matter of the admission and exclusion of evidence is not before this court for review. State v. Yandell, 201 Mo. 646. But defendants do assign as error the action of the court in permitting a witness for the State, Mrs. Gones, to testify her name not being indorsed on the indictment. This court has often held that such a ruling is not error. State v. Barrington, 198 Mo. 23; State v. Myers, 198 Mo. 225; State v. Hottman, 199 Mo. 110. (3) Defendants, in their motion for a new trial, do assign as error the giving of State's instructions 3 and 4. Instruction 3 properly defined the crime of burglary and larceny; it told the jury that both of the defendants could be convicted of both burglary and larceny; both of them could be convicted of either burglary or larceny; and also told the jury that they could convict or acquit either defendant. Said instruction follows the language of the statute, and the forms prescribed thereby. R. S. 1899, sec. 1891. Instruction 4 properly explained to the jury the breaking necessary to constitute burglary. It has often been held that any breaking into a dwelling for the purpose of committing a felony is burglary. State v. Tutt, 63 Mo. 600; State v. Hecox, 83 Mo. 538; Dennis v. People, 151 Mich. 151; State v. Moon, 62 Kan. 803; Finch v. Com., 14 Gratt. (Va.) 646; State v. Reid, 20 Iowa 421; May v. State, 40 Fla. 426; State v. Conners, 95 Iowa 486. (4) The evidence of the guilt of both defendants was sufficient, especially in the absence of any explanation or contradiction on their part. The presence of both defendants, together, on the road near Mr. Herman's dwelling, a very short while after the commission of the crime, the fact that two negroes were seen a few minutes before coming out of Mr. Herman's front yard, when considered with the flight of both defendants and their possession of all of the stolen property an hour and half later, was conclusive proof of the guilt of both of them. The recent possession of stolen property which was taken at the time of the commission of a burglary, is sufficient to justify the jury in finding that the persons in whose possession the same is found are guilty of the burglary, as well as the larceny. State v. Howard, 203 Mo. 604; State v. Toohey, 203 Mo. 678; State v. James, 194 Mo. 277; State v. Moore, 117 Mo. 404; State v. Owens, 79 Mo. 619; State v. Warford, 106 Mo. 62; 4 Elliott on Evidence, secs. 2725 and 2918; 1 Wigmore on Evidence, sec. 153; 1 Greenl. on Evidence, sec. 34.
On October 30, 1907, the grand jury of Ralls county returned an indictment charging the two defendants with burglary and larceny. The offense was alleged to have been committed on the 20th of October, 1907, and the dwelling house of Utmer Herman burglarized, and certain personal property then and there in the said house stolen and carried away. The defendants were arrested, and at the said October term, 1907, were duly arraigned and entered their plea of not guilty. Afterwards in November, 1907, the defendants were jointly put upon their trial and convicted of both burglary and larceny and their punishment respectively assessed at three years in the penitentiary for the burglary and two years each for the larceny. After their motions for new trial and in arrest of judgment were filed and overruled, they were duly sentenced in accordance with the verdict of the jury. And from that sentence they have appealed to this court. The indictment is in the ordinary and often-approved form, and hence it is not necessary to reproduce it in this opinion.
The evidence tended to prove that the prosecuting witness Utmer Herman lived in Saverton township in Ralls county, Missouri, and was a farmer. His dwelling house was situated on the Saverton and Frankfort county road, which runs north and south by said farm into the town of Saverton. The house faced east and was about five miles from Saverton. On Sunday, October 20, 1907, Herman and his family, which consisted of himself, his niece, Mrs. Gones, and three children, were at home until about 2:30 in the afternoon. At that time they left the house and went a quarter of a mile to a field to feed some calves. They were gone about two hours and a half, and when they returned discovered that the house had been burglarized during their absence. The outer door was a wire screen door and was closed by hinges and a spring, and the inner door was latched, and the entrance had been effected by pulling open the screens and getting into the house. As soon as Mr. Herman and his family returned to the house they discovered that various boxes and drawers had been opened and different articles of apparel were scattered around on the floor. An examination disclosed that a gold watch and a white-handle razor belonging to Mr. Herman had been stolen from a dresser drawer. The watch was a gold-filled watch and had attached to it a fob, which made it easy to identify it. Another box had been opened and the razor taken out of it. The watch was shown to be worth twenty-five dollars, and the razor and other articles stolen were worth from thirty-two to thirty-three dollars. The pocket book of Mrs. Gones containing $ 1.95 in money had also been stolen. Mr. Herman at once armed himself and started in pursuit of the thieves. He rode down the road towards Saverton and overtook the two defendants just as they were coming into town. Both of the defendants were negroes. He ordered the defendants to stop and compelled them to hold up their hands. He called upon Mr. Calvin to assist him and they searched the two defendants in front of Mr. Fisher's house. While searching one of the defendants the other one took off his overcoat and made a motion towards the fence. Mrs. Gones's pocket book was found in the possession of one of the defendants at that time and contained $ 1.95. The two defendants were then taken on down to the depot in the town and another party was sent back to examine the ground where the defendants were first searched. There on the ground and near the fence in front of Fisher's place, this party found a gold watch and fob and the white-handle razor, which belonged to Herman. Various other articles were found on the person of the defendants, among others a revolver in the sleeve of one of the defendants. Mr. Glasscock was riding that Sunday afternoon by Herman's place and saw and recognized the two defendants walking along the side of the road about two hundred yards from Herman's house, about four o'clock in the afternoon. And a Mr. Keech testified to seeing two negro men coming out of the front yard.
The defendants offered no evidence. The court instructed the jury on reasonable...
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