The State v. Stuart

• Decision Date: 20 December 1926
• Docket Number: 27039
• Parties: The State v. Bert Stuart, Appellant
• Court: Missouri Supreme Court

289 S.W. 822

316 Mo. 150

The State v. Bert Stuart, Appellant

No. 27039

Supreme Court of Missouri

December 20, 1926

Appeal from Holt Circuit Court; Hon. Guy B. Park, Judge.

Affirmed.

J. B Dearmont and Robert L. Minton for appellant.

(1) The court erred in failing to instruct the jury upon all questions of law in the case which were necessary for their information in arriving at their verdict. (a) Instruction 5 narrowed the province of the jury, and denied the defendant the right to have the jury pass separately upon his guilt or innocence of each offense charged. State v. Brown, 73 Mo. 631; State v. Hecox, 83 Mo. 531; State v Conway, 241 Mo. 271; State v. Burrell, 298 Mo 672. The court attempts to inform the jury as to what their verdict should be if they found the defendant guilty of both burglary and larceny, but they should have been further instructed that they could acquit of burglary and find defendant guilty of larceny; in which event the offense of burglary should be defined and the offense of larceny defined, and in this case, under the information and the proof, an instruction defining the offense of petit larceny should have been submitted to the jury. State v. Owens, 79 Mo. 619; State v. Hecox, 83 Mo. 537; State v. Brinkley, 146 Mo. 37; State v. Nicholas, 222 Mo. 425; State v. Lackey, 230 Mo. 707. (b) The court erred in giving Instruction 4. This instruction is obscure and meaningless and makes no correct statement of the law. Its purpose, manifestly, was to direct the jury that unless they found certain facts to exist which constituted the crime of burglary, they should acquit the defendant. The defendant's effort in this manner, by offering such an instruction, should have sufficiently called the court's attention that the defendant desired to be tried for burglary and for the larceny as if they were two separate and distinct offenses, as they are in law regarded. State v. Nicholas, 222 Mo. 432; State v. Conway, 241 Mo. 287. (2) The court erred in refusing to sustain the demurrers offered by the defendant at the close of the State's evidence and at the conclusion of all the evidence offered in the trial. The rambling and inconsistent statements of the witness Collins could not have been "received with great caution," or with any caution, by the jury under the record in this case. This witness lays the prelude for his tale by trading his watch for whiskey. From the time of this transaction until he, defendant Stuart and the witness Williams arrived at the St. John place he drank of his liquor. He volunteered the information that he "picked up" an old revolver in the St. John home, although he didn't know why he did it -- he didn't want it. His remembrance of the St. John smokehouse on that day reflects the muddled condition of his brain. This witness bore a bad reputation for truth and veracity, honesty and good citizenship, and admitted he had been convicted of the crime of arson in the State of Kansas. He is corroborated in but three things: that he was in company with the defendant Stuart and the witness Williams, in a Ford car driving along the public highway north and west of the village of Fortesque on the day of the commission of the alleged offense; that he was drunk and that a revolver was taken from him in the afternoon of that day. The case is not supported by, and Collins is not corroborated by, a circumstance that is present in almost every reported case charging a defendant with the crime of burglary and larceny -- the finding of any of the property alleged to have been stolen in the possession of the person charged with the crime. State v. Owens, 79 Mo. 626; State v. Butterfield, 75 Mo. 297; State v. Yandle, 166 Mo. 589; State v. Moss, 216 Mo. 436; State v. Henderson, 212 Mo. 442.

North T. Gentry, Attorney-General, and A. M. Meyer, Special Assistant Attorney-General, for respondent.

(1) The information is sufficient. State v. Carey, 278 S.W. 720; Secs. 3305, 3325, R. S. 1919; Sec. 3297, Laws 1921, p. 196; Kelley's Cr. L. & Prac. (3 Ed.) sec. 609; State v. McGuire, 193 Mo. 226; State v. Person, 234 Mo. 265; State v. Blockberger, 247 Mo. 601; State v. Tipton, 307 Mo. 502. (2) The verdict found defendant guilty of each crime charged and separately assessed the punishment for each offense, and was sufficient in every respect. State v. Carey, 278 S.W. 722. The judgment was in the usual form and conformed to the verdict. (3) Instruction number five, given at the request of the State is in approved form and correctly states the law when read with instruction number 8, given by the court at the request of the State. State v. Conway, 241 Mo. 281; State v. Tracy, 294 Mo. 386; State v. Carpenter, 216 Mo. 448. (4) Instruction 4 correctly stated the law, and in any event was given at the request of the defendant. Hence, the defendant is not entitled to complain of the form or substance of the instruction so given at his request. This instruction was the converse of that part of the main instruction, Number 5, which defined burglary. Defendant complains that no similar instruction was given as the converse of that portion of the main instruction defining larceny. No request was made for such an instruction and the trial court will not be convicted of error for failing to give a converse instruction when none is asked. State v. Cardwell, 279 S.W. 100. (5) The court did not err in refusing the defendant's instructions in the nature of demurrers to the evidence offered at the close of the State's case and at the close of all the evidence. There was ample evidence by an eyewitness of both the breaking and the asportation and the mere fact that the witness Collins bore a bad reputation for truth and veracity did not preclude the jury from believing his testimony and they have passed on his credibility. The jury were given a proper cautionary instruction on the testimony of an accomplice and Collins's testimony was corroborated by other witnesses. Under such circumstances this court will not overturn the verdict. State v. Carr, 256 S.W. 1046. (6) The assignments of defendant's motion for a new trial were not sufficiently specific to necessitate the review of any instructions given or refused. State v. Scanlan, 273 S.W. 1065.

OPINION

Walker, P. J.

The defendant was charged by information in the Circuit Court of Holt County with burglary and larceny, and upon a trial to a jury he was convicted as charged and his punishment assessed at two years' imprisonment in the penitentiary for each offense. From this judgment he appeals.

The facts disclose that the crimes with which the defendant was charged were committed by him while in company with two others, named Collins and Williams. The building burglarized was a smokehouse on the farm of one Fred St. John, located near the town of Fortescue in Holt County. Collins testified that in passing the St. John residence it was discovered that the owner and his family were away from home. That he and the defendant alighted from the car and he entered the St. John residence, from which he took a pistol. As he emerged from the house he saw the defendant pick up a gunny sack by the door of the smokehouse, open the door of same and enter it; that he saw meat, hams and shoulders, spread out on a table in the smokehouse, and that the defendant upon seeing it said, with an oath, "Right here is where I get myself some meat." Later the defendant came out of the smokehouse with the loaded gunny sack on his shoulder, and went southwesterly with it and returned a short time thereafter without it. Williams and Collins waited in the car until the defendant's return. They then went to Fortescue, from which place they had gone earlier in the day. It appears that these parties had gone out into the country to obtain some whiskey, which, upon their return, they had been drinking and were under the influence of it when they reached the St. John residence. That evening the defendant told Collins that he had hid the meat out behind a straw-stack and was going back that night to get it. St. John testified that he and the members of his family at or about nine or ten o'clock on the day the crimes were alleged to have been committed, went to Fortescue, two miles distant, and returned at about two-thirty, p. m. that day. Upon their return he found that four joints of meat, three hams and a shoulder, had been taken from his smokehouse; that this house was about twenty feet from his residence, was closed and could only be entered by lifting a latch and opening the door of same; that a short time before he and his family left home the defendant and Williams and Collins passed in a car going in a northerly direction. Several witnesses testified that on the day of the alleged crime they saw the defendant and his two companions in a car on the road which ran by St. John's residence. Williams, testifying for the defendant, stated that at no time did he and the defendant and Collins stop at St. John's residence. There was no other testimony for the defense, other than to prove that Collin's reputation for truth and veracity was, as stated by one witness, bad, and by another, that it was good when he was sober and bad when he was drunk.

The errors alleged by the defendant to have been committed during the progress of the trial, as preserved in the motion for a new trial, are the admission of incompetent evidence; that the verdict was not in conformity with the law and the instructions of the court, and was the result of passion and prejudice.

The motion in arrest of judgment alleged that the information...