State v. Goehler

FOX, J. — This cause is here upon appeal by the defendant from a judgment of conviction of burglary — 179 — in the second degree, in the circuit court of the city of St. Louis. The information, which was duly verified as provided by law, upon which this judgment rests, omitting formal parts, is as follows: “W. Scott Hancock, assistant circuit attorney, in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the State of Missouri, upon his official oath, information makes as follows: That Charles Goehler and Albert Kessler on the twenty-third day of August in the year of our Lord, one thousand nine hundred and four, at the city of St. Louis aforesaid, into a certain dwelling-house and building of Mary Hesmann there situate and being, feloniously and burglariously, forcibly did break and enter, with intent then and there, and thereby feloniously and burglariously to steal, take and carry away certain goods, wares, merchandise, other valuable things and personal property in the said dwelling-house and building, then and there kept and deposited, against the peace and dignity of the State. ’ ’ This information was filed on the 8th of September, 1904. Defendant was granted a severance and was tried and convicted on the 4th of November, 1904, being the October term of the said court, and his punishment assessed at three years in the penitentiary. The record in this cause discloses that the defendant filed a motion for a new trial at once, which was overruled on November 25th. Defendant’s motion in arrest of judgment was then filed and on December 3rd the same was continued till the next term of court. At the next term of court (the December term), the motion in arrest was overruled. Judgment of sentence was theu duly entered of record in accordance with the verdict and from this judgment defendant prosecuted his appeal to this court. The record also discloses that no hill of exceptions was filed during the October term, at which defendant was convicted and at which term his motion for new trial was overruled; but upon the overruling of the motion in — 180 — arrest of judgment at the December term, to wbicb. it had been continued from tbe October term, tbe bill of exceptions for tbe first time was filed. OPINION. It is manifest from tbis record that tbe action of tbe court during tbe progress of tbe trial has not been properly preserved by bill of exceptions, duly filed at tbe term of court when said trial was bad. Tbe record plainly discloses that tbe defendant was tried and convicted at tbe October term, 1904, of tbe court, and that at tbe same term bis motion for new trial was filed and by tbe court overruled. In order to preserve tbe action of tbe court upon such motion and all other matters occurring during tbe progress of tbe trial at that term, it was absolutely essential to either tender and cause to be filed a bill of exceptions during that term, or obtain leave of tbe court, by order duly entered of record, to file tbe same at some subsequent time. In tbis cause tbe record shows that neither of these essential steps was taken. Tbe filing of tbe motion in arrest of judgment at tbe October term, being tbe term at wbicb defendant was convicted, and tbe continuance of such motion in arrest to tbe December term, 1904, did not have the effect to carry tbe exceptions to tbe matters, indicated in tbe motion for new trial, over to tbe December term, and tbe filing of tbe bill of exceptions at tbe December term, undertaking to preserve tbe action of tbe court occurring at tbe October term, was wholly unauthorized and tbe matters therein' contained are not subject to review upon such unauthorized bill. In view of tbe recent, thorough and exhaustive discussion of tbis proposition in State v. Larew, 191 Mo. l. c. 197, we deem it unnecessary to again review tbe authorities on tbe question in support of tbe conclusions reached. It was said in that case, wbicb upon tbe ques — 181 — tion now in hand, is identical with the one at bar, after fully reviewing all the authorities, that “it would seem too clear for argument, in view of the foregoing settled rules of practice, that if the defendant desired to have his exceptions taken to the action of the circuit court during the trial of said cause considered, it was incumbent upon him to save his exceptions to the overruling of his motion for new trial at the June term, 1904, and to tender his hill of exceptions containing all the matters to which he excepted at that term, and that the continuance of his motion in arrest, whose office is only to direct the attention of the court to errors apparent on the face of the record, did not have the effect to carry his exceptions to the matters in his motion for new trial over to the October term, and this being true, we must hold that in this state of the record there is nothing before us for review except the record proper.” Upon the record proper, and that is all that is properly before us for consideration, the appellant challenges the sufficiency of the information. The contention of defendant upon this proposition is predicated solely upon the failure of the information to allege the ownership of the property charged to have been kept or deposited in the building in which it is charged the burglary was committed. Upon this question it is only necessary to state that under the well-settled rules of pleading in criminal cases, it was not essential to make this allegation. It will he observed that this information is limited to the charge of burglary in the second degree, and the defendant is not charged with the larceny of any of the goods kept and deposited in the building at the time of the commission of the burglary, hence the ownership of the goods deposited in the building was absolutely immaterial. The contention of appellant is nowhere more clearly or correctly answered than it was by this court in State v. Tyrrell, 98 Mo. 354. It was there said, in discussing the proposition now before us, that “inasmuch as the gravamen of the charge was the — 182 — burglary, it was unnecessary to specify the ownership of the goods. This is well settled. Archbold, treating of the crime under discussion, says: ‘ The intent must appear to be to commit a felony in the dwelling-house; but if the intent alleged be to commit a larceny, it is not necessary to show whose goods they were; it is sufficient to state them to be “the goods and chattels in the: said dwelling-house then being.” ’ [2 Archb. p. 329.] To the same effect see Reg. v. Clarke, 1 Car. & K. 421; Reg. v. Lawes, 1 Car. & K. 62. An eminent authority states that ‘the common form of charging the intent is to say, for example, “with intent the goods and chattels of one (or the said) B. in the said dwelling-house then and there being feloniously, burglariously to steal, take and carry away.” ’ But he also says, that the words “of one B.” are unnecessary. [2 Bishop Crim. Proc., sec. 142.] And elsewhere he says that if the allegation is silent as to the ownership of the goods, as to which an intent to steal is charged, no ownership need be proved. [Ib. secs. 147,142; see, also, State v. Clarke, 42 Vt. 629; Wicks v. State, 44 Ala. 398; Jones v. State, 18 Fla. 889; Harris v. State, 61 Miss. 394; 1 Whart. Cr. Law (9 Ed.), sec. 820; Commonwealth v. McGorty, 114 Mass. 299.] ” This court again, in State v. Turner, 106 Mo. l. c. 277, clearly announced the essential elements of the offense of burglary. It was there said, that ‘ ‘ the gravamen of the charge is the burglarious breaking of the calaboose. The specific objection in the motion to quash was that the indictment did not charge when the goods and wares were deposited and kept in the calaboose. The objection is not tenable; it is immaterial when they were placed there or by whom; the material question was, were the goods, wares and merchandise described in the indictment ‘ then and there, ’ at the time of the commission of the burglary, ’ kept and deposited in the calaboose, and was it the intention then of defendants to — 183 — take, steal and carry them away?” These cases must be held decisive of this question. An examination of the other parts of the record-proper discloses that the defendant waived formal arraignment and entered his plea of not guilty, and the trial proceeded in regular form. The impaneling of the jury, the return of the verdict and judgment in accordance therewith, are shown by the record to he regular in every particular. There is nothing remaining to he done with this cause, except to announce the affirmance of the judgment, which is so ordered. All concur.