The State v. James

• Decision Date: 06 March 1906
• Citation: 92 S.W. 679,194 Mo. 268
• Parties: THE STATE v. JAMES, Appellant
• Court: Missouri Supreme Court

92 S.W. 679

194 Mo. 268

THE STATE v. JAMES, Appellant

Supreme Court of Missouri, Division Two

March 6, 1906

Appeal from Jackson Criminal Court. -- Hon. Jno. W. Wofford, Judge.

Affirmed in part and judgment entered here.

Philip D. Clear and W. F. Riggs for appellant.

(1) The State rested its case on the theory that recent possession of stolen property establishes a prima facie case of guilt against the one in possession. But the property must be sufficiently identified. Gray v. Parker, 38 Mo. 160; Kaufman v. Schilling, 58 Mo. 218; Mahoney v Smith, 7 Mo.App. 578. (2) Only the underwear on defendant when arrested and the pair of shoes, if the officer who beat defendant severely is believed instead of defendant recovered from Levy, can be said to have been in the exclusive possession of defendant, and only exclusive possession of stolen goods raises a presumption of guilt. State v. Castor, 93 Mo. 242; State v Warford, 106 Mo. 55; State v. Scott, 109 Mo. 226; State v. Owsley, 111 Mo. 450; State v. Belcher, 136 Mo. 137; State v. Baker, 144 Mo. 329; State v. Drew, 179 Mo. 315. (3) Error was committed in overruling motion for new trial, because of giving instruction 3 for the State, the presumption of guilt instruction; also because of the exception saved to prosecutor Lyman's remarks to jury.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

(1) The information, which was accompanied by the affidavit of the prosecuting witness, was sufficient. R. S. 1899, sec. 1891; Kelley's Criminal Law, sec. 609; State v. Watson, 141 Mo. 338. (2) State's instruction 3, on the presumption arising from the recent possession of stolen property, has been approved. State v. Owens, 79 Mo. 624; State v. Warford, 106 Mo. 61; State v. Scott, 109 Mo. 228. (3) Evidence that defendant had served a term in the State penitentiary was excluded by the court, when the State endeavored to bring it out; but later, defendant and defendant's mother testified to that fact. So defendant can not now complain thereof, even if error was committed. State v. Goddard, 162 Mo. 198. (4) The alleged improper remarks of the prosecuting attorney, during his closing argument to the jury, can not be considered, because of the failure to preserve said remarks in the bill of exceptions. Affidavits to the effect that objectionable remarks were made are not sufficient to save the matter for review. State v. Latimer, 116 Mo. 524; State v. Welsor, 117 Mo. 583; State v. Steen, 115 Mo. 474. (5) The evidence was ample. Martin v. State, 88 S.W. 962; McGaha v. State, 88 S.W. 983; State v. Yandle, 166 Mo. 539; State v. Frankie, 159 Mo. 535.

OPINION

FOX, J.

This cause comes here upon appeal by the defendant from a judgment of conviction in the criminal court of Jackson county for burglary and larceny. The information upon which this judgment is predicated, omitting formal parts, was as follows:

"Now comes Roland Hughes, prosecuting attorney for the State of Missouri in and for the body of the county of Jackson, and upon the affidavit of Jacob Louis, herewith attached and filed, informs the court, that George James and John Richards, whose Christian names in full are unknown to said prosecuting attorney, late of the county aforesaid, on the 25th day of March, 1904, at the county of Jackson, State aforesaid, did unlawfully, feloniously and burglariously break into and enter a certain building, Number 806, Independence avenue there situate, the same being a building in which divers goods, wares, merchandise and valuable things were then and there kept for sale and deposited, with the felonious intent the said goods, wares, merchandise and valuable things in the said building then and there being then and there unlawfully, feloniously and burglariously to steal, take and carry away; and 16 pairs of shoes of the value of thirty-four dollars, 30 undershirts of the value of nine dollars, 6 drawers of the value of three dollars, six drawers, elastic sides, of the value of three dollars, two dozen pairs of socks of the value of three dollars, three dozen handkerchiefs of the value of three dollars and sixty cents, two striped shirts of the value of one dollar, one grip of the value of one dollar, three hats of the value of six dollars, all in the aggregate of the value of sixty-three and 40-100 dollars, of the goods and property of Jacob Louis in said building then and there being found, did then and there unlawfully, feloniously and burglariously steal, take and carry away, against the peace and dignity of the State."

On May 25, 1904, a severance was granted defendant and he was put upon trial for the offense charged. We have examined the disclosures of the record and find that the testimony tended to prove substantially the following state of facts:

On the 25th of March, 1904, the defendant, who is a negro, resided with his mother in Kansas City. The prosecuting witness, Jacob Louis, was the owner and proprietor of a clothing store, situated at No. 806 Independence avenue, in said city, and in said store various articles of merchandise were stored and kept for sale. Mr. Louis remained at his store on the evening of the 25th of March till about eleven or twelve o'clock, when he locked the front and back doors and went to his bed room, which was over his store. The next morning Mr. Louis discovered that some one had cut a hole in the panel of the back door, and then removed the wooden bar which fastened the door. There were two back doors to said store, and in front of this one there were some valises sitting on the floor. These valises had been pushed back and the door was wide open. On examining his stock, Mr. Louis discovered that sixteen pairs of shoes, twenty-four blue undershirts, twelve pink undershirts, six pairs of cream-colored drawers, thirty-six handkerchiefs, a suit case, four hats, some socks, and some striped shirts had been stolen. The aggregate value of said property was about $ 63.40. The defendant had often been around Mr. Louis's place of business. Mr. Louis at once reported the facts to the police authorities. Officer Phelan having been detailed to investigate the burglary, arrested the defendant and John Richards the next day at Sandy Edwards' saloon. A new suit of underwear was found on defendant, and a new suit of underwear was found on John Richards, both of which were identified by Mr. Louis as having been stolen the night before; the undershirt was too small for defendant. All of the balance of the stolen property was found at the home of defendant's mother that day, except the sixteen pairs of shoes. To this police officer defendant admitted that he had given one pair of shoes to a man named Bishop, to sell to Levy's pawnshop. In this pawnshop one pair of shoes was found, which was identified by Mr. Louis. Defendant told this officer that he had got these various articles from John Richards, and afterwards said that he bought them from a white man; he also stated that he might just as well have gotten a wagon load.

The defendant's mother testified that she bought the clothing from a white man, and gave him one dollar and something to eat. That she then gave some of the clothes to defendant, and the rest remained at her house till the police searched the house. Defendant's sister testified that she saw a white man leaving home just as she was returning and that her mother then told her that she had purchased a lot of clothing from that man, and had paid him one dollar. In his own behalf defendant testified that he was in St. Joseph at the time of the commission of the alleged crime, returned to Kansas City the morning after its commission, and got the clothing from his mother; that he did not steal any of said property, knew nothing of who stole it, and was not even acquainted with John Richards. He also testified that police officer Phelan mistreated him and threatened him, forcing him to make the alleged statements testified to by said officer. The officer denied the statements of defendant as to such mistreatment.

At the close of the evidence the court instructed the jury and the cause was submitted to them and they returned the following verdict:

"We, the jury, find the defendant George James guilty of burglary, as charged in the information, and assess his punishment at five years in the State penitentiary. We, the jury, also find the defendant guilty of larceny, as charged in the information, and assess his punishment therefor, in addition to the punishment assessed for burglary, at three years in the State penitentiary."

The instructions complained of will be given due consideration during the course of the opinion.

Motions for new trial and in arrest of judgment were timely filed and by the court taken up and overruled. Judgment and sentence was duly entered of record and from this judgment defendant in due time and form prosecuted his appeal to this court, and the record is now before us for consideration.

OPINION.

At the very inception of the consideration of the record in this cause we find that the information upon which this judgment is predicated fails to properly charge the offense of burglary in the second degree. We have reproduced such information and it is apparent that there is an entire absence of any charge or allegation of ownership of the building in which it is charged the burglary was committed. The charge is that defendant did unlawfully, feloniously and burglariously break into and enter a certain building No. 806 Independence avenue, there situate; but there is no allegation as to the ownership of the building, not even an intimation as to who was in possession of it. The ownership of the building is an essential allegation in charging the offense of burglary. The...