State v. Hedgpeth

*455 WALKER, P. J. The appellant was jointly charged with two others in the Criminal Court of Greene County in one count with burglary and larceny. A severance was granted and upon a trial he was convicted and sentenced to five years imprisonment in the penitentiary. From this judgment he appeals. The statement of the facts is based upon the evidence introduced by the" State, the appellant having offered no testimony. *456 The crime charged was committed July 16, 1924, at an oil station in the city of Springfield, operated by the Wilhoit Oil Company. At about 9:30 o ’clock p. m., on the day stated, an employee of the oil company placed the day’s receipts, consisting of money and checks, amounting to about one hundred dollars, in the safe, locked the same and the office door and left the station. On the inside casing of one of the windows he left an Ingersoll watch and a silver pencil. At daybreak or about four o’clock the next morning a call was received at the office of the police department for an officer to go to the.oil station. Two officers, Hulse and Webb, responded. When they reached the station Frank Carey, who is one of the parties jointly charged with the appellant, came out of the station and was arrested. The appellant was arrested a short time after the officers reached the station as he came out from between two buildings about a block and a half from the station. As the officer ordered appellant to halt the latter threw a roll on the ground which was found to contain fifty-three dollars in currency and several checks made payable to the oil company. Appellant had on his person at the time of his arrest a loaded revolver, a knife, about nine dollars in money, an Ingersoll watch and a silver pencil; these two latter articles were identified by the employee as those left by him in the window of the oil station. When the officers turned the money out of appellant’s pocket he said, ‘ ‘ That is my own money. ’ ’ An examination of the station disclosed that the burglars had effected an entrance thereto by prying open a window. The combination of the safe had been knocked off and the doors forced open. I. It is contended that the information is invalid in that it charges two offenses in one count. There is no merit in this contention. The statute authorizes this procedure m charging the offenses in question in this language: “If any person in committing burglary shall also commit a larceny, he may be *457 prosecuted for both offenses in the same count, or in separate counts of the same indictment.” [Sec. 3305, R. S. 1919; State v. Tracy, 294 Mo. 389 and cases.] II. Failure to prove the corporate existence of the Wilhoit Oil Company, the premises of which were charged to have been burglarized, is assigned as error. Proof of the appellant’s guilt of the crimes charged or either of them did not depend upon establishing the fact of the oil company’s incorporation, but upon the question as to whether the appellant feloniously broke into the premises of another, and to establish • the larceny, that he stole from such premises the property described in the charge. While the corporate existence of the oil company was alleged in the information it was a mere matter of description to enable the owner to be more readily identified. Whether, therefore, the owner of the premises be a corporation, a partnership or an individual is not material to the appellant’s defense or in the establishment of his guilt. The statute defining the manner in which corporate existence in a criminal case may be proved is in the following language: “If on the trial or other proceeding in a criminal cause, the existence, constitution or powers of any banking company or corporation, shall become material, or be in any way drawn in question, it shall not. be necessary to produce a certified copy of the charter or act of incorporation, but the same may be proved by general reputation, or by the printed statute book of the state, goverment or country by which such corporation was created.” [Sec. 4032, R. S. 1919.] "Generally considered, the limitations of this section clearly indicate that evidence of corporate existence is not admissible in a criminal case, unless the same is material, and if not material it follows, as the section prescribes, that it cannot be drawn in question. In other words, the section was enacted to provide a ready *458 means of proving corporate existence where snch proof was an issue in the case. This statute does not attempt to change any rule of evidence further than to lessen the quantum of proof necessary to establish an incorporation. The proof, therefore, of the legal character, natural or artificial, of a person whose premises are alleged to have been burglarized or property stolen, is governed by the same rule as to relevancy as any other fact and is admissible only when it will tend to establish the guilt or innocence of the accused or, as the statute redundantly puts, it, when it, is “material or may in any way be drawn in question.” There is no pretense that this proof should have been made to establish the guilt of the appellant and nothing was attempted to be shown in what manner it would contribute to his defense. It is simply baldly contended that error was committed in not requiring the State to prove the corporate character of the oil company as laid in the information. The ownership of the premises alleged to have been burglarized, as well as that of the property stolen, was alleged in the information. This allegation was proved as laid. Whether such ownership was in a firm or a corporation is not material. Incidentally this question was discussed in a well considered opinion by Higbee, P. J., in State v. Tracy, 294 Mo. l. c. 389, where the ownership of property stolen was alleged to be in one corporation and was proved to be in another, it was held that the variance. was not material for the reason that a variance in the ownership of property named in an indictment shall not be deemed ground for an acquittal of the defendant, unless the trial court shall find that such variance is material to the merits of the case and prejudicial to the defense of the defendant. This ruling is based upon a provision in one of the criminal Statutes of Jeofails (Sec. 3907, R. S. 1919), which, among other things, provides, in effect, that where there is a variance between the charge and the proof as to the ownership of any property named or descxibed therein that it shall not be deemed grounds - for an acquittal unless the trial court shall find'that such *459 variance was material. It follows from the express terms' of this statute and .the rulings of this court thereon, that the measure of the determination of the admission of testimony in regard to the ownership of property described in a criminal charge is its materiality. This requisite as to the admissibility of this character of proof is required by each of these statutes. It does not exist in this case. The contention is overruled. III. It is urged as error that testimony was permitted to be introduced of the thefts of property at the time and from the place charged other than that described in the information. The rule as to the admission of evidence tending to establish the commission of a crime other than that charged, may be invoked as has been done by respondent in discussing this contention, but a more precise consideration of same will limit a discussion of the rule here to prosecutions for burglary and larceny, more particularly the latter. . Facts' prerequisite to the admission in evidence of the possession by a defendant of stolen property, other than that charged, are the possession of such property recently after the commission of the offense and that it had been stolen at about the time and from the place as the property charged in the indictment. If these facts be shown the evidence is admissible as forming a part of an entire transaction. The prerequisite facts are not absent in this case. The property, other than that charged to have been stolen, was found on the person of the appellant at the time of his apprehension and almost immediately after the burglarly; it was shown to have been in the oil station the .night before the latter was burglarized and that the ownership of same was in one of the employees of the oil company. Thus identified, evidence in regard thereto was authorized, not only for the reasons stated but on the ground that it was so inseparably a part with the crime charged as to constitute a circumstance connecting the appellant with *460 the same. We had occasion to discuss this question in State v. T. B. Smith, 250 Mo. 368, with the result that testimony of the character under review was held admissible for the reasons above stated. The ruling in the Smith Case was but an affirmance of that announced in State v. Flynn, 124 Mo. 480, and earlier cases of like import. The curious may find a compilation of the cases on this question in Clampitt v. United States, 89 S. W. 666, 10 Ann. Cas. 1089; and in Comm. v. Riggs, 14 Gray, 376, as annotated 77 Am. Dec. 333; 36 Corpus Juris, p. 858, sec. 399, and notes; 17 Ruling Case Law, p. 75, sec, 80 and notes. We overrule this contention. IV. The contention concerning the impropriety of the instructions given and that error was committed in refusing those requested by the appellant, is not preserved in the record in a manner authorizing a review of same. No objections were made at the time or exceptions saved to the rulings of the court thereon. A motion for a new trial can effect nothing as a preservative receptacle of errors alleged to have been committed during the progress of the trial, if such errors were not called to the attention of the trial court by timely objections and exceptions. [State v. Reich, 293 Mo. l. c. 425; State v. Pfeifer, 267 Mo. 23.] This rule may be applied with equal force under the facts to the objections made to the remarks of the counsel for the State. [State v. Murphy, 292 Mo. l. c. 295; State v. Cooper, 271 S. W. (Mo.) l. c. 475; State v. Kembugler, 267 S. W. (Mo.) 801.] V. The jury returned this verdict: “We, the jury, find the defendant, Herman Hedgpeth . guilty of burglary and larceny, in manner and form as charged in the information and assess his punishment at five (5) years in the penitentiary.” This verdict is void for uncertainty. While the statute (Sec. 3305, B. S. 1919) permits burglary and larceny to be prosecuted in the same or seperate counts, *461 it does not operate to avoid the necessity of the jnry finding in a definite manner of what offense or offenses the accused is guilty. This cannot he determined from this verdict, and constitutes reversible error. [State v. McHenry, 207 S. W. (Mo.) 808 and cases.] While the court properly instructed the jury as to their duty in this regard it did not, nor did the prosecuting officer, as should have been done, call the error to the attention of the jury when the verdict was returned and afford an opportunity for its correction. In view of ample proof of the appellant’s guilt and the absence of any other ground of reversal this error is regrettable. For this reason the case must be reversed and remanded. It is so ordered. All concur.