The State v. Weber

• Decision Date: 08 May 1900
• Docket Number: 2
• Citation: The State v. Weber, 56 S.W. 893, 156 Mo. 257 (Mo. 1900)
• Parties: THE STATE v. WEBER, Appellant
• Court: Missouri Supreme Court

56 S.W. 893

THE STATE v. WEBER, Appellant

156 Mo. 257

No. 2

Supreme Court of Missouri, Second Division

May 8, 1900

Appeal from Dent Circuit Court. -- Hon. L. B. Woodside, Judge.

Affirmed.

J. J Cope for appellant.

(1) There is no evidence that the property, which the indictment pretends to charge the defendant with stealing, was of any value whatever at the time the same is charged to have been taken. There must be some value proven at the time of the taking of the property or a conviction can not stand. State v. Krieger, 68 Mo. 98. (2) The evidence does not show that the building mentioned in the indictment was a dwelling house as contemplated by the law in such cases. Sec 3512, R. S. 1889, in describing and defining a dwelling house, says: "Every house, prison or jail, or other edifice which shall have been usually occupied by persons lodging therein shall be deemed a dwelling house of any person having charge thereof or so lodging therein, but no warehouse, barn, shed or other outhouse shall be deemed a dwelling house or part of a dwelling house within the meaning of this or the last section unless the same be joined or immediately connected with or is a part of a dwelling house." This statutory designation of a dwelling house differs from the definition of a dwelling house at common law. The dwelling house at common law included, says Lord Hale, the privy, barn, stable, cow houses, dairy houses, if they are a part of the messuage, though they are not under the same roof or joining contiguous to it. The word "house" is not identical with "dwelling house," but "dwelling house" and "mansion house" are the same.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) It was not necessary for the State to allege and prove the value of the article or articles. Burglary with larceny always makes the larceny grand larceny regardless of the value of the stolen property. Proof of some pecuniary value is all that is necessary. State v. Sharp, 106 Mo. 106; State v. Brown, 75 Mo. 317; State v Schatz, 71 Mo. 502. (2) The defendant sought in the evidence to prove this building a barn or cow stable. If that is accepted then the building will come within the curtilage of the owner's residence, and the crime is still burglary. Murry may have had another place of residence, yet the fact that he stayed at this house in the woods when he was at work there, and also that it was built for the purpose of sheltering those whom the owner might employ to cut wood for him, made it a dwelling. State v. Jones, 106 Mo. 302; State v. Clark, 89 Mo. 429; State v. Meerchouse, 34 Mo. 344; State v. Hecox, 83 Mo. 531. Moore used this building as others had used it and for the purpose it was built; to give him and his property the protection of a dwelling over it, and for the happiness and comfort of his own physical being. At least while anyone was occupying it as Moore did it was a dwelling, even though he was temporarily absent.

BURGESS, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

BURGESS, J.

At the October term, 1899, of the Dent Circuit Court, the defendant was indicted and convicted of burglary and larceny, and his punishment for the burglary fixed at three years' imprisonment in the penitentiary, and for the larceny at two years' imprisonment in the penitentiary.

After unsuccessful motions for a new trial and in arrest, defendant appeals.

The house into which defendant was convicted of breaking, was a small log house about fifteen or sixteen feet square, and was located in the woodland of one Alexander Murry in Dent county. It had no flue or fireplace, but had one window, which however at the time of the burglary was boarded up. The house was built for and occupied by wood-choppers while chopping wood from the land near by. On the 28th day of April, 1899, and for several days prior thereto, one George Moore and another person were staying in said houses, eating, living and sleeping there. When absent from the house they kept it locked. On said 28th day of April, 1899, defendant broke into the house, by tearing some boards from the roof, and took, stole and carried away therefrom, a coat, vest and pair of pants, the property of George Moore, which cost, when new, from three dollars and fifty cents to four dollars.

The first question presented for our consideration, is with respect to the...