The State v. McGuire

• Court: Missouri Supreme Court
• Writing for the Court: BURGESS, P. J.
• Citation: The State v. McGuire, 91 S.W. 939, 193 Mo. 215 (Mo. 1906)
• Decision Date: 31 January 1906
• Parties: THE STATE v. McGUIRE, Appellant

91 S.W. 939

193 Mo. 215

THE STATE v. McGUIRE, Appellant

Supreme Court of Missouri, Division Two

January 31, 1906

Appeal from Audrain Circuit Court. -- Hon. Jas. D. Barnett, Judge.

Affirmed.

Clarence A. Barnes for appellant.

(1) The amended information does not state facts sufficient to advise appellant of the offense with which he is charged, and does not state facts sufficient to constitute a public offense. (a) It fails to allege ownership of the chicken-house to be in anyone at the time of the alleged offense. 1 Bish. New Crim. Proc., secs. 408, 410, 412; State v. Seward, 42 Mo. 206; State v. Broeder, 90 Mo.App. 156. (b) It fails to allege and describe any property kept or deposited in the chicken-house answering the description of "goods, wares and merchandise, or other valuable thing," and thereby enable the court to see that the property was such as in law is the subject of larceny, and the defendant to know what it was he is charged with attempting to steal. 2 Bish. New Crim. Proc., sec. 702; State v. Dawes, 75 Me. 51; State v Patrick, 79 N.C. 655; State v. Morey, 2 Wis 494. (c) It fails to allege that the goods, wares and merchandise or other valuable things were "then and there" kept or deposited in the chicken-house. Reg v. Clarke, 1 Car. & K. 421; 2 Arch., p. 329; State v. Hardwick, 2 Mo. 226; Jane v. State, 3 Mo. 61; State v. Hagan, 164 Mo. 654. (d) It does not allege that the chicken-house was a building "then and there" the property, etc., thereby omitting to allege ownership of the building to be in any person other than defendant at the time of the alleged offense. State v. Jones, 168 Mo. 398; State v. Broeder, 90 Mo.App. 156. (2) The court erred in giving erroneous instructions for the State, and refusing proper instructions requested by the defendant.

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

(1) The information, which was duly verified by the affidavit of the prosecuting attorney, was sufficient. It is based on the act of the General Assembly, passed and approved on May 31, 1899, and follows the language of said statute. State v. Helms, 179 Mo. 280; Laws 1899, 161. (2) No error was committed by the court in refusing defendant's two instructions. The first one told the jury that chickens and turkeys were not goods, wares, merchandise or other valuable thing contemplated by the statute. This instruction was declared to be erroneous by this court in a similar case. State v. Helms, 179 Mo.280. The second refused instruction told the jury that there was no evidence that defendant was guilty of larceny from the building alleged to have been burglarized. Under the information and under the statute, it was not necessary to prove that defendant was actually guilty of larceny. All that the statute denounces is the breaking into a house (not subject of burglary in the first degree) with the intent to commit larceny. State v. Peebles, 178 Mo. 484. (3) The State's instructions on the subject of burglary in the second degree, reasonable doubt, burden of proof, weight of evidence and credibility of the witnesses, were proper and have often been approved by this court. State v. Peebles, 178 Mo. 482. The recent possession of stolen property is evidence from which the jury may convict the defendant not only of larceny, but also of burglary. State v. Yandle, 166 Mo. 589. (4) The evidence for the State conclusively showed that defendant was guilty as charged. State v. Warford, 106 Mo. 55.

OPINION

BURGESS, P. J.

On an information presented by the prosecuting attorney within and for Audrain county, charging the defendant with burglary in the second degree, in burglariously breaking into and entering a chicken-house, being a building belonging to and the property of another, to-wit, one Lee Stewart, with the intent and purpose to steal certain goods, wares and merchandise and other valuable things kept and deposited therein, defendant was, at the January term, 1905, of the circuit court of said county, convicted of the offense charged, and his punishment fixed at three years' imprisonment in the penitentiary. After unsuccessful motions for a new trial and in arrest, defendant appeals.

The salient facts are about as follows:

Lee Stewart, whose chicken-house defendant is charged with burglarizing, lived at the time on a farm about eight miles east of Mexico. He owned two turkey hens and sixty-seven chickens which he kept in a chicken-house situated on his farm, near his dwelling. On Sunday evening, January 8, 1905, these turkeys and chickens were put into the chicken-house and the outside door securely fastened with a button. A light snow fell after ten o'clock that night. On going out in the yard, Monday morning, Mr. and Mrs. Stewart discovered the chicken-house door unfastened and open, and that one turkey hen and twenty-five of their chickens were gone. The chickens would have weighed, on an average, five and a half pounds each, and the turkey hen would have weighed about fifteen pounds. Stewart also discovered the tracks of a man leading from the chicken-house across the yard, and down the public road. The tracks indicated that the man had made three trips to the chicken-house, and they led back to a point on the road where it appeared a buggy and two horses had been standing in the snow. These tracks came from the direction of Mexico and led back in the same direction. Both horses had been shod, so that Stewart and his son had no trouble in tracking them all the way to Mexico. On reaching that town, Stewart went to the livery stable of A. M. Barnes, where he was shown a buggy which defendant had used the night before. It was a two-horse buggy, and had in it some chicken feathers and other chicken litter. Defendant had hired this buggy and team at nine o'clock, Sunday night, saying at the time that he wanted to drive a girl to the country after church, and that he would be gone all night. He returned to the livery stable about 9 o'clock Monday morning. About half past eight o'clock, the same morning, defendant appeared at the poultry house of Sam Wayne, in Mexico, to whom he sold one turkey hen weighing fifteen pounds, and 132 pounds of chickens. Wayne testified that the defendant carried the fowls that he purchased from him in two sacks; and some under the buggy seat; that the turkey and chickens were at once killed and picked, and in about an hour Mr. Stewart came in and inquired for his fowls.

The defendant's evidence tended to show that Stewart, in a conversation had with witness Edward Rodhouse, said that the chicken thief drove in a wagon, which he afterwards called a rig; that one inch of snow fell sometime between seven o'clock Sunday night and seven o'clock Monday morning, and that the thermometer that night was eleven degrees above zero.

The information, leaving out the formal parts, is as follows:

"Now comes John D. Orear, prosecuting attorney within and for Audrain county, Missouri, upon his official oath and upon his information, knowledge and belief, and informs the court that at the county of Audrain and State of Missouri on the 8th day of January, 1905, one Jack McGuire did then and there feloniously and burglariously break into and enter in the nighttime a chicken-house being a building belonging to and the property of another, to-wit, one Lee Stewart, there situate, by unfastening the latch of an outer door and forcibly pushing said door open -- said building being one in which there was at that time goods, wares and merchandise, and other valuable things kept and deposited, with the intent the goods, wares and merchandise and other valuable things there kept and deposited to steal, take and carry away, against the peace and dignity of the State."

At the close of all the evidence defendant asked instructions in the nature of demurrers to the evidence, which were refused by the court, and defendant saved his exceptions.

The following instructions were given by the court:

"1. If the jury believe from the evidence in the cause, and beyond a reasonable doubt, that the defendant, on or about the 8th day of January, 1905, at the county of Audrain, and State of Missouri, broke into and entered, in the nighttime the chicken-house of one Lee Stewart, by forcibly unfastening the latch of the outer door of said chicken-house building and forcibly pushing said door open, and that there were at said time in said chicken-house building goods, wares and merchandise, and other valuable things, to-wit, chickens and turkeys kept and deposited, and further believe from the evidence, and beyond a reasonable doubt, that the defendant did so break into and enter said chicken-house building with the intent of stealing, taking and carrying away, converting to his own use, and of depriving the owner permanently of his property, and against the owner's consent and without any honest claim of right thereto, any of the chickens and turkeys then in said chicken-house and belonging to said Lee Stewart, then the jury will find the defendant guilty of burglary in the second degree, and will assess his punishment at imprisonment in the penitentiary for a term of not less than three years.

"2. You are further instructed that you are the sole judges of the weight of the evidence and the credibility of the witnesses, and in passing upon such weight and credibility you may take into consideration the demeanor of the witness on the stand, his or her interest, if any, in the result of the suit, his or her prejudice or bias, if any, either for or against the accused, his or her opportunities for knowing the facts to which they testify and dispositions to relate them truly and correctly or otherwise, the probability or improbability of his or her statements on the...