The State v. Schuchmann

• Decision Date: 03 March 1896
• Parties: The State v. Schuchmann, Appellant
• Court: Missouri Supreme Court

33 S.W. 35

133 Mo. 111

The State v. Schuchmann, Appellant

Supreme Court of Missouri, Second Division

March 3, 1896

Appeal from Franklin Circuit Court. -- Hon. Rudolph Hirzel, Judge.

Reversed and remanded.

Zach. J. Mitchell for appellant.

(1) All distinction between principal and accessory before the fact has been abolished by section 3944, Revised Statutes, 1889 and said section provides that such accessory "may be charged, tried, and punished in the same manner as a principal in the first degree." State v Fredericks, 85 Mo. 145; State v. Anderson, 89 Mo. 312; State v. Buckner, 93 Mo. 88; State v. Payton, 90 Mo. 220. The term "may" should be construed as "shall," and the indictment as against appellant should have been as full and explicit in its essential term, as though he were indicted as a principal, and these omissions can not be supplied by referring back o the terms used in the indictment as against the principals. And, further, the term "chicken house building," as set out in said indictment, is not such a building as comes within the term "or other building" as used in section 3526, Revised Statutes of Missouri, 1889, defining burglary in the second degree, in that the term "or other buildings" as therein used, is a general term, following specifically defined buildings, and can only be construed as including buildings of a like class to those so specifically defined, and, furthermore, the term "chicken house building" coming clearly within the legal definition of a building within the curtilage of a dwelling house, the indictment should have so charged it. (2) An examination of the affidavit for a change of venue, filed herein, which is a part of the record proper (State v. Worrell, 25 Mo. 205-209), shows upon its face no statutory ground for the granting thereof by the circuit court of St. Louis county to the circuit court of Franklin county, giving the Franklin circuit court jurisdiction of the cause, but clearly presents the statutory grounds of prejudice in the minds of the inhabitants of St. Louis county against defendant, qualified by the alleged reason therefor.

R. F. Walker, attorney general, and Morton Jourdan, assistant attorney general, for the state.

(1) The indictment in this case is in the usual form, charging the crime of burglary and larceny, and is sufficient. (2) Upon the record proper, this case ought to be affirmed. The court can not consider the bill of exceptions or any points attempted to be saved by it, for the reason that the same was not filed, nor was an order entered of record extending the time for filing the bill of exceptions, within the time prescribed by law. On January 15, the court made an order allowing the defendant time in which to file his bill of exceptions, which time expired on March 16, on which last day the record in this case closed and the judgment became final, and there was no authority either to file the bill of exceptions thereafter or to make an order extending the time for filing the same; therefore, the order made by the trial judge on March 19, three days after the time previously allowed had expired, is inoperative and of no effect whatever. Nor did the defendant file the bill of exceptions within the time allowed under this order, a week from March 19, but the bill was not filed until March 29, or ten days after the attempted extension of time had expired. The judgment should, therefore, be affirmed. State v. Simmons, 124 Mo. 443; State v. Clark, 119 Mo. 426; State v. Britt, 117 Mo. 584; State v. Mosley, 116 Mo. 546; State v. Scott, 109 Mo. 226; State v. Hill, 98 Mo. 570; State v. Broderick, 70 Mo. 622; Boardman v. Vaughn, 44 Mo.App. 549; McHoney v. Insurance Co., 44 Mo.App. 426; State v. Apperson, 115 Mo. 470; State v. Berry, 103 Mo. 367; State v. Harben, 105 Mo. 603; State v. Seaton, 106 Mo. 208; State v. Ryan, 120 Mo. 88; State v. Mansfield, 106 Mo. 110; State v. Sweeney, 54 Mo.App. 580; R. S. 1889, sec. 2168.

Division Two: Sherwood, J. Burgess, J., concurs. Gantt, P. J., dissents. In Banc: Brace, C. J., and Burgess and Robinson, JJ., concurring with Sherwood, J., therein. Barclay, Gantt, and Macfarlane, JJ., dissenting.

OPINION

In Banc.

DIVISION TWO.

Sherwood J.

On change of venue from St. Louis county circuit court, the defendant was tried in the Franklin circuit court upon an indictment, the material portions of which are as follows:

"That Joseph Turner and Ruben Troller on the second day of July, A. D. one thousand eight hundred and ninety-three, at the county of St. Louis, in the state of Missouri, did then and there feloniously and burglariously break into and enter a certain chicken house building, the property then of William C. Price, by forcibly pushing and bursting open an outer window of the same, and with the intent thereby then and there feloniously and burglariously to take, steal, and carry away certain property, consisting of divers live chickens and valuable things, which were then and there being kept and deposited in said building; and then and there did unlawfully and burglariously take, steal, and carry away, from and out of said building of the said valuable things, the property then of the said William C. Price, divers live chickens in number and of value to these jurors unknown.

"And the jurors aforesaid upon their oath aforesaid, do further present and charge that before the said felonious burglary and larceny was committed as aforesaid, one Edward Schuchmann did in the said county and on the said day, unlawfully, feloniously, and burglariously advise, incite, procure, and aid the said persons, Joseph Turner and Ruben Troller to commit the said crimes and felony, against the peace and dignity of the state.

R. Lee Mudd,

"Pros. Att'y of St. Louis Co., Mo."

The trial resulted in the conviction of the defendant, his punishment being assessed at imprisonment in the penitentiary for the term of three years.

1. On the sixteenth of March, the time granted defendant in which to file his bill of exceptions having expired, the trial judge was powerless on the nineteenth of March to extend by his order the time for filing the bill of exceptions, as we have over and over again decided.

2. The section of the statute upon which the foregoing indictment is framed is as follows: "Every person who shall be convicted of breaking and entering: First, any building within the curtilage of a dwelling house, but not forming a part thereof; or, second, any shop, store, booth, tent, warehouse or other building, or any boat or vessel, or any railroad car in which there shall be at the time some human being, or any goods, wares, merchandise, or other valuable thing kept or deposited, with intent to steal or commit any felony therein, shall, on conviction, be adjudged guilty of burglary in the second degree." R. S. 1889, sec. 3526.

Under this section, the indictment, if based on the first clause thereof, must charge that the building in which the burglary was committed was "within the curtilage of the dwelling house." Without such averment the indictment would be fatally defective, because of not containing the descriptive words the statute contains.

If the indictment be based on the second clause of the section, then it is bad because the rule as to matters ejusdem generis applies -- that good rule of construction which requires that "where a particular class * * * is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class." Broom, Leg. Max. [6 Ed.] * 625.

Here the term "chicken house building" is not of the same kind or class as those previously mentioned, and therefore can not fall within the definition of the term "other buildings." State v. Bryant, 90 Mo. 534, 2 S.W. 836, and cases cited. See, also, State ex rel. v. Seibert, 123 Mo. loc. cit. 438.

The indictment is therefore bad under either clause of the section.

This view of the matter is not in accord with State v. Hecox, 83 Mo. 531, where a burglary in a "granary" was committed, and there was no allegation that it was within the curtilage; but for reasons already given, we do not regard that case as sound law and consequently will not follow it.

Moreover, the statute is both penal and criminal, and therefore to be strictly construed; construed strictly as to those portions which are against defendants, but liberally construed in those which are in their favor; that is, for their ease and exemption. No person is to be made subject to such statutes by implication, and when doubts arise concerning their interpretation, such doubts are to weigh only in favor of the accused. Bishop, Stat. Cr. [2 Ed.], secs. 193, 194, 227.

The defects mentioned in the indictment, being fatal in their character, may be raised and considered for the first time in this court, and of our own motion. State v. Meyers, 99 Mo. 107, 12 S.W. 516, and cases cited.

When writing the above, I had supposed the doctrine so well settled in regard to the proper construction to be given to the meaning of general words which follow those which designate or create a particular class or classes of persons or things, that I thought it needless to do but little more than barely to refer to some of the authorities which announced the time-worn maxim, ejusdem generis. But it seems from recent suggestions that I erred in so thinking, and so I will refer to some "wise saws and modern instances" illustrating the hackneyed position heretofore taken.

Thus in Reg. v. Whitnash , 7 B. & C. 596, Stat. Car. II chapter 7, section 1, provided, "that no tradesman, artificer, workman, laborer, or other person whatsoever" should exercise his ordinary calling on the...