The State v. Simpson

• Decision Date: 06 June 1927
• Docket Number: 27869
• Parties: The State v. L. A. Simpson and E. T. Jones, Appellants
• Court: Missouri Supreme Court

295 S.W. 739

317 Mo. 398

The State v. L. A. Simpson and E. T. Jones, Appellants

No. 27869

Supreme Court of Missouri

June 6, 1927

Appeal from Jackson Circuit Court; Hon. E. E. Porterfield Judge.

Reversed and remanded.

Anthony P. Nugent for appellants.

The indictment is insufficient and fatally defective. State v. Jordan, 289 S.W. 540; State v. Hurt, 285 S.W. 976; State v. Henschel, 250 Mo. 268, 157 S.W 311; State v. Jones, 168 Mo. 398, 68 S.W. 506; State v. Kelley, 206 Mo. 655, 105 S.W. 606; 9 C. J. 1044.

North T. Gentry , Attorney-General, and Smith B Atwood, Assistant Attorney-General, for respondent.

(1) Where ownership of building is unknown, and that fact is alleged in the indictment, it is sufficient. State v. Davis, 138 Mo. 107; State v. Morrissey, 22 Iowa 158; 5 Ann. Cas. 1007; 9 C. J. 1043. (2) A "description" of a building includes ownership by virtue of the maxim that the greater includes the lesser; hence the allegation that the "description" is unknown is tantamount to the allegation that the "ownership" is unknown. Webster's Unabridged Dictionary, "Description."

Henwood, C. Higbee and Davis, CC., concur.

OPINION

HENWOOD

The appellants were jointly indicted by a grand jury of Jackson County, Missouri, on the charge of second degree burglary. They were tried together, found guilty and each sentenced to imprisonment in the penitentiary for two years in accordance with the verdict of the jury.

While the motion for new trial covers a broad field of alleged errors, counsel for appellants have limited their brief to one question only -- the sufficiency of the indictment. Invoking the rule, all other questions will be treated as abandoned. [State v. Murrell, 289 S.W. 859.]

With all formal parts omitted the indictment is written as follows:

"The Grand Jurors for the State of Missouri, duly summoned from the body of said County of Jackson, being duly impaneled, sworn, and charged to inquire within and for said county, upon their oaths present and charge that L. A. Simpson and E. T. Jones, whose Christian names in full are to the said grand jurors unknown, on the 6th day of July, 1925, at the County of Jackson and State of Missouri, did then and there unlawfully and feloniously and burglariously break into and enter a certain building, to-wit: a building located at 217 West 9th Street, in Kansas City, Jackson County, Missouri, and known as the Savoy Pharmacy, a more accurate description of which is to the said grand jurors unknown, the same being a building in which divers goods, wares, merchandise and valuable things were then and there kept and deposited, with 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, against the peace and dignity of the State." (Italics ours).

This indictment is fatally defective because of its failure to allege some form of ownership, in some person other than appellants, of the building charged to have been burglarized. To hold otherwise would violate the constitutional right of appellants to be informed as to the nature and cause of the accusation against them. And in a long line of decisions of this court it has been held that an indictment or information so failing, in this essential element of the crime of burglary, will not sustain a judgment of conviction. [State v. Jordan, 289 S.W. 540; State v. Hurt, 285 S.W. 976; State v. Henschel, 250 Mo. 263; State v. Clark, 223 Mo. 48; State v. Kelley, 206 Mo. 685; State v. James, 194 Mo. 268; State v. Horned, 178 Mo. 59; State v. Jones, 168 Mo. 398; State v. Davis, 138 Mo. 107.]

This rule, as laid down in the case of State v. Jones, supra, is frequently quoted with approval in this and other jurisdictions. It reads, in part, as follows: "It has always been necessary to allege and prove the ownership of the house charged to have been burglarized, and the ownership of the chattels alleged to have been stolen. . . . As nothing is to be left to intendment, the defendant is entitled to know whether the State intends to show ownership in a firm composed of individuals or in a corporation."

In the case of State v. Clark, supra, this court held that "defendants in criminal cases are entitled to be informed by the pleadings of the charges against them, and the question of the ownership of property in burglary and larceny is an essential in the charge."

Excepting jurisdictions where this question is controlled by statute, reference must be had to the common law, and for that reason the rule above announced is almost universally followed. While there is some conflict among common-law authorities as to the requirements in pleading ownership by copartnerships and corporations, no such conflict exists as to the necessity of pleading ownership, possession or occupancy in some one other than the accused. [9 C. J. 1043; 5 Ann. Cases, 1011.]

The learned Attorney-General, in discussing the authorities above cited, inquires as to what particular language is necessary to properly allege ownership, possession or occupancy of the premises involved in a burglary charge. A very comprehensive discussion of this question, covering all conceivable situations, is found in 9 Corpus Juris, beginning at page 1043. Among other things, this authority says: "In alleging ownership no particular form of words is necessary. It is sufficient to describe the premises as 'belonging to' a person or a corporation named, or as the dwelling house, shop, office, building, etc., 'of' a certain person, or as 'the property of' a certain person. In some states it is sufficient to allege that the premises were 'occupied' by a person named."

To meet the contentions of the Attorney-General in support of the indictment in this case, it should now be noted that while it fails entirely to allege ownership, possession or occupancy of the building in question in any form whatsoever, it does use the following language: "a building located at 217 West 9th Street, in Kansas City, Jackson County, Missouri, and known as the Savoy Pharmacy, a more accurate description of which is to the said grand jurors unknown."

The Attorney-General contends, first, that the use of the word "description" implies ownership, among other things; and, second, that, with this implication, the grand jury made the indictment good and sufficient by saying "a more accurate description of which is to the said grand jurors unknown."

We are unable to agree with the Attorney-General in either of these contentions. In the first place, the word "description," as defined by Webster and other well known authorities, does not necessarily imply "ownership," when used in reference to a building but, even so, this contention must fail when we remember that nothing is...