State v. Duddrear

*4 WALKER, P. J. The appellant was charged by information in the Circuit Court of Jackson County with burglary in' the second degree and larceny from a railroad car, under Section 3297, Laws 1921, p. 196, and Section 3305', Revised Statutes 1919>. Upon a trial he was convicted and his punishment assessed at twelve years’ imprisonment in the penitentiary. The nature of the errors necessitating a reversal of this case renders a statement of the facts unnecessary. ’ I. The information properly charges the offenses named as required by the statute. II. There was no proof, however, that the railroad company, the car of which was alleged to have been burglarized, was a corporation; nor was there a]Qy proof that the car*was owned by the railroad company or that the company had any interest therein. These failures of proof constitute reversible errors, and have been so ruled several times by this court. In State v. Levikow, 192 S. W. 416, we held that where the indictment charged that the defendant feloniously received goods stolen from a corporation, the conviction cannot be uphold where there was no proof that the alleged owner of the goods was a corporation, either da jure or da facto; that to sustain a conviction the State must establish the fact of the theft, and to do so it must show the ownership of the goods taken. Likewise in State v. Winer, 263 Mo. 356, we lield that a conviction of the offense of receiving goods stolen from a railroad company could not be sustained if there was; no proof of the incorporation of the company, and that the goods charged to have been stolen were at the time in the company’s possession. (See earlier rulings to a like effect, referred to in the Levikow and Winer eases.) *5 III. An amendment to the statute (Sec. 3302) approved April 7, 1921, Laws 1921, p. 279, fixed the maximum punishment for burglary in the second degree at ten years. Theretofore no maximum was prescribed by the statute. The instructions given in this .,, , , , . ,, . . , case omitted to state the maximum punishment for burglary in the second degree. The absence of any evidence of larceny rendered any instructions in regard thereto unnecessary and that phase of the case, as alleged in the information, was properly excluded from the consideration of the jury. The instruction given in regard to the punishment was in substance as follows: after defining the findings necessary to be made to authorize a conviction, the jury is authorized “to find the defendant guilty of burglary in the second degree and assess his punishment at imprisonment in the penitentiary not less than two years.” This was error, as it left the fixing of the maximum punishment under the evidence to the discretion of the jury. [State v. Fair, 177 S. W. (Mo.) 355, and cases cited.] The statute (Sec. 4050, R. S. 1919) authorizing the court, if the jury), assess a punishment in excess of that prescribed by law, to disregard the excess and pronounce sentence and) render judgment according to the highest limit prescribed by law in regard to the particular case, if it had been observed, could not be invoked to sustain this conviction. The purpose of this statute is to enable the trial court to render a correct judgment where the jury has been properly instructed as to the degree of punishment and returns a verdict in disregard of such instruction and in excess of the legal limit; but the statute confers no power of amendment on the trial court where the error, as here, consists in a misdirection by the court itself. [State v. Britton, 183 S. W. (Mo.) 295.] *6 *5 IV. Error is urged in that the trial court, in pronouncing judgment, sentenced the defendant to imprisonment for the offense of “burglary in the second degree *6 and larceny.” The látter offense had, under 7 the instructions, been expressly excluded from the jury’s consideration and their verdict was limited to the burglary alone. If no other errors were apparent of record the correction of the judgment by the elimination of the words “and larceny” might be made without prejudice to the appellant. This suggestion of judicial limitation, whether it be in accord with our liberal Statute of Jeofails restricting a defendant’s relief on appeal to prejudicial errors, is simply made in passing. Reference thereto, if it accomplishes no more, may prevent prosecuting officers, clerks and courts from committing like irregularities in future records. This case bristles with error. Not only in the introduction or failure of the State to introduce evidence to sustain a conviction, but in the giving of instructions. A knowledge of the evidence necessary to sustain a conviction would have avoided the first; and a reference to the statute defining the punishment would have prevented the second. The Attorney-General concedes all these errors. There remains, therefore, no alternative other than a reversal and a remanding of this case that it may be tried in the manner required by law. All concur.