The State v. Peebles

• Decision Date: 09 December 1903
• Citation: 77 S.W. 518,178 Mo. 475
• Parties: THE STATE v. PEEBLES and YORK, Appellants
• Court: Missouri Supreme Court

77 S.W. 518

178 Mo. 475

THE STATE v. PEEBLES and YORK, Appellants

Supreme Court of Missouri, Second Division

December 9, 1903

Appeal from Atchison Circuit Court. -- Hon. C. A. Anthony, Judge.

Affirmed.

Hunt & Bailey and T. S. Stevens for appellants.

(1) In burglary there must be a breaking and some proof of an actual entry. Kelley, Crim. Law, (1 Ed.), secs. 74, 76 and 78. (a) There must be a breaking and entering with intent to steal. State v. Gyrrell, 98 Mo. 354; State v Hutchinson, 111 Mo. 257; State v. Meerchouse, 34 Mo. 344. (b) There is no evidence in this case of a breaking. State v. King, 174 Mo. 647; State v Phillips, 49 Mo.App. 325. (2) The information is bad in this: (a) It charges the burglary of one building and the larceny from another building. The proof shows that the Hall warehouse, where the goods were stored that were supposed to have been stolen, is separate and distinct from the Rickard Company building, supposed to have been burglarized; hence the two offenses could not be joined in the same information, for the reason that the goods supposed to have been stolen were not in the warehouse supposed to have been burglarized and there was no communication between the warehouses. (b) The proof fails to show who owned the the building burglarized. It is charged in the information to be owned by Aggie Rickards and Eliza Rickards; the proof shows that it was owned by Mrs. A. L. Rickards & Co., and the names of the company are not set out in the information, nor does the proof show that Agnes Rickards and Eliza Rickards form the company of A. L. Rickards & Co. Kelley, Crim. Law (1 Ed.), p. 303; Bish. Crim. Law (6 Ed.), p. 110; 1 Whart. Crim. Law (9 Ed.), p. 788. There was no burglary of the warehouse where the goods supposed to have been stolen were stored. The information must allege the ownership of the building; if a company, it must set out the parties composing the company, and the allegation must be proved as alleged. State v. Tyrrell, 98 Mo. 354; State v. Nelson, 101 Mo. 477; State v. Henley, 30 Mo. 509; State v. Dull, 141 Mo. 284; State v. Jones, 168 Mo. 402.

Edward C. Crow, Attorney-General, and Bruce Barnett for the State.

(1) There was a sufficient breaking in this case to constitute a burglary. The door was locked and the defendants unlocked it with a key which they had obtained to fit it. State v. Woods, 137 Mo. 6; State v. Moore, 117 Mo. 395; State v. Hicox, 83 Mo. 531. (2) The corpus delicti may be proved by circumstantial evidence. State v. Dickson, 78 Mo. 438. (3) If the jury believed that the defendants were accomplices, and that, acting together for a common purpose, one of them after breaking, entered the house with intent to steal, and did steal, both being present, this is sufficient for a conviction of both burglary and larceny. State v. Staehlin, 16 Mo.App. 559. (4) The information alleges the building to have belonged to James E. Hall and Aggie Rickards and Eliza Rickards, and the evidence so shows.

OPINION

BURGESS, J.

At the May term, 1903, of the Atchison Circuit Court, the prosecuting attorney of said county filed in said court an information charging the defendants Peebles and York jointly with having feloniously and burglariously broken into and entered a certain warehouse, situate in said county, and belonging to one James E. Hall and Aggie Rickards and Eliza Rickards, in which there were divers goods, wares and merchandise and valuable things then and there kept for sale, with the felonious intent to burglariously steal, and did steal, take and carry away fifteen sacks of flour of the value of sixteen and fifty one-hundredths dollars of the goods belonging to said James E. Hall in said warehouse then being found, and did then and there feloniously and burglariously steal, take and carry away, against the peace and dignity of the State.

They were thereafter put upon trial in said court and found guilty of both burglary and larceny, and their punishments respectively assessed at three years' imprisonment in the penitentiary for the burglary, and two years for the larceny. They thereafter, in due time, filed motions for new trial and in arrest, which being overruled, they saved their exceptions, and prosecute this appeal.

At the time of the alleged commission of the offenses with which defendants are charged, one Sylvester Hall owned a frame warehouse in the village of Watson, Atchison county. It fronted east and had a board partition in the center running the entire length of the building from a point about six to eight feet west of the front. It only extended upward to about as high as the lower ends of the rafters and was only about eight feet high, leaving it entirely open above the partition end between that and the roof. In the space at the east end between the end of the partition and the wall was where the flour was. It was stacked up to within three feet or something like that, of the top of the partition. One J. E. Hall occupied as tenant of Sylvester Hall that part of the building north of the partition as a warehouse for the purpose of storing flour and other commodities, and at the same time there was a large number of sacks of flour therein, some twelve to fifteen of which were stolen and carried away.

Aggie Rickards and Eliza Rickards, as partners under the firm name of A. L. Rickards & Company, at the same time occupied the south side of the partition as a warehouse in which they kept barreled salt and other articles of merchandise. Each of the rooms had a door in front, locked with different kind of locks, and the evidence tended to show that the entrance was made through the door on the south side of the partition by unlocking it, and the flour passed over the partition from its north side to its south side, then out through the door. The offenses were committed on the night of the fourth or fifth of March, 1903. None of the stolen flour was found in the possession of defendants, and the evidence with respect to their connection with the offenses was altogether circumstantial.

Defendant Peebles hauled a portion of the flour to the warehouse. It was the property of J. E. Hall and that taken was worth about sixteen dollars.

Elmer Cassey, a witness for the State, testified that early in March, 1903, he had been around the livery stable of the defendant Peebles, and that defendant York also spent considerable time there, he being Peebles' uncle; that these defendants entered jointly into a conversation with witness, told him that they had a key to the warehouse and asked witness to go with them that night to get out some flour; they said they would go into the building and hand out the flour; witness refused to take any part in such an expedition and the defendants said that they could get along without him and would do it themselves.

After this conversation the defendants, at about nine o'clock, went off and witness went to bed.

The defendants did not say what warehouse they expected to get the flour from, but they did speak of getting it over the partition, and there is evidence that there was no other warehouse in the town where flour was kept.

After the information had been filed against the defendants and they were put under arrest, they asked Cassey not "to give them away."

There was evidence tending to show that the character of Cassey, witness for the State, among his neighbors for truth and veracity was not good.

Over the objection and exception of defendants, the court instructed the jury as follows:

"1. The court instructs the jury that the defendants are presumed to be innocent of the offense charged; that before you can convict them, or either of them, the State must overcome that presumption by proving such defendant or defendants to be guilty beyond a reasonable doubt. If the jury have a reasonable doubt as to the guilt of either of the defendants they should acquit such defendant; but a doubt, to authorize an acquittal, must be a substantial doubt, and not a mere possibility of innocence.

"2. The jury are instructed that, if they believe from the evidence, beyond a reasonable doubt, that the defendants, Wilbur Peebles and Oliver York, did, on or about the 1st day of March, 1903, or at any time within three years next before the 5th day of May, 1903, at the county of Atchison and State of Missouri, feloniously and burglariously break and enter the warehouse of James E. Hall, in which at the time were stored flour and other goods, wares and merchandise, with the intent then and there to feloniously take, steal and carry away any of the goods, wares or merchandise therein situated, with the intent to deprive the owner permanently thereof and to convert the same to their own use; then, in that case, you will find the defendants guilty of burglary and assess their punishment at imprisonment in the penitentiary for not less than three years.

"3. If the jury find the defendants guilty of burglary, and, if the jury further believes that, at the time of the commission of said burglary, the defendants did take, steal and carry away from the premises aforesaid any flour, the same being the property of James E. Hall, you should find the defendants guilty of larceny and assess their punishment at imprisonment in the penitentiary for a term not less than two years nor more than five years, in addition to the punishment assessed for the burglary.

"4. The court instructs the jury that the word 'feloniously' as used in these instructions, means wickedly and against the admonitions of the law -- that is, unlawfully.

"5. The jury are instructed that, if they believe from the evidence that the warehouse of James E. Hall was a room of the same building in which the warehouse of Rickards & Co. was situate, and that said rooms were...