State v. Blockberger

WALKER, J. From a judgment of the circuit court of the city of St. Louis sentencing defendant to imprisonment in the penitentiary for burglary in the second degree, and grand larceny, he appeals to this court. The information charged the defendant with burglary in the second degree and larceny in having on the 20th day of May, 1911, entered the store, shop or building of one Albert Stone, with intent to steal personal property therein, and in then and there stealing, taking, and carrying away thirty dollars, lawful money of the United States. The defendant was arraigned on the 26th day of June, 1911, in the circuit court of.the city of St. Louis and entered a plea of not guilty. On the succeeding day he was put upon his trial before a jury, which, after hearing the evidence and receiving the instructions of the court, found-him guilty as charged and assessed his punishment at imprisonment in the penitentiary for a term of two years for the burglary and for an additional term of two years for grand larceny. After ineffectual motions for a new trial and in arrest of judgment, he appealed to this court. The evidence for the State disclosed that during the month of May, 1911, Albert Stone was engaged in business as a confectioner, at 2001 Park Avenue, city of St. Louis; that at the time mentioned in the information there was in Stone’s store building, in addition to the usual fixtures and merchandise incident to this character of business, a cash register in which there was a number of bills in paper money, and thirty dollars in silver, the latter consisting of dollars, half603 dollars, quarters, dimes and nickels; that about twelve o’clock on the nigbt of tbe 19th day. of May, 1911, Stone, the proprietor, before closing the store, counted the money on hand, put the bills in his pocket and left the thirty dollars in silver in the cash register, the drawer of which he closed. He then locked the store door and retired to his room where he lodged, in the rear of the same building. Sometime between three and four o’clock on the morning of May 20, 1911, a police officer named Omohundro had tried the door in passing and found it locked. Later, at about 4:45 a. m., Edward Marshall, a newspaper carrier, saw the defendant with a companion sitting near the vestibule of Stone’s store. James Moore, a motorman, who came up about this time and was waiting for a car to take him to his work, also saw the defendant at the same place, and the latter, just as Moore boarded the car, arose, entered the vestibule to the store, took something out of one of his pockets and turned towards the door as if to unlock it. From the testimony of Marshall and Moore it is shown that they knew the defendant by sight, having seen him at different times in the neighborhood, and that his presence at Stone’s store at that time in the morning attracted their particular attention. Moore, after boarding the car, proceeded several blocks when, seeing the police officer named Omohundro, he hailed and notified bim of the occurrence; the officer went at once to the store building, where he found the door unlocked and the drawer of the cash register open, disclosing that it was empty except for a few pennies. In company with another officer named Shellhasse, Omohundro, after learning where the defendant roomed, went to his lodging place, arrested him at about 7:30 a. m. and .took him to the station. They found on his person $14.15 in silver of the denominations of dollars, half-dollars, quarters, dimes and' nickels, and a bunch of keys, one of which was tried by the officers on the [604] door to Stone’s store and was fonnd to lock and unlock the same. When asked by the officers, both at his room and after being taken to the station, when he had gone to his room, he said at 4:30 or 5 o’clock that morning, and when asked where he had been the night before he said he had been “out at a sporting house on Lucas .avenue.” On the witness stand defendant denied making these statements, and said that he had been at his room from twelve p. m. until his arrest and that he had no keys on his person other than a key to his room and one to his dresser; that he was employed by his brother to manage a pool room on Chouteau avenue, and the night before the alleged burglary he had been employed at his brother’s place of business until about twelve o’clock, when he closed the place and took the key to the pool room door to his brother’s house, where he left it, retaining the silver money found on his person, which was a part of that taken in during the evening and belonged to his brother; that after leaving his brother’s house in company with Eoy Alexander, he went to his room on Grattan street and did not leave it until he was taken therefrom by the officers the next morning. Eoy Alexander testified that he accompanied the defendant to his room at about twelve o’clock, saw him enter same, and did not see him any more until sometime the next day, in fact until after he was under arrest. The whereabouts of the defendant from the time he went to his room at twelve o’clock on the night of May 19, 1911, are not accounted for, except by his testimony, until about 4:45 o’clock the next morning when he was seen by Marshall, the newspaper carrier, and Moore, the mortorman, near and in the vestibule of Stone’s store; defendant denies that he was at the store at the time stated by these witnesses. A number of other witneses testified on behalf of the defendant principally to the effect that at different [605] times be was employed by bis brother at tbe pool room. Defendant bad served a term in tbe workhouse. Other than as an occasional assistant at bis brother’s pool room be bad no vocation. Tbe court instructed tbe jury on burglary in tbe second degree, and grand and petit larceny, and that they could find defendant guilty of both burglary as charged and larceny, or acquit him of one and find him guilty, of tbe other, or acquit of both, or, if tbe value of tbe .property was found to be less .than thirty dollars, if acquitted of tbe burglary and found guilty of larceny, tbe finding should be for petit larceny. Instructions were also given on tbe defense of alibi, presumption of innocence, reasonable doubt, tbe weight to be given to defendant’s own testimony, and tbe weight and credibility to be given to testimony of witnesses generally. I. Tbe sufficiency of tbe information is challenged by tbe defendantit is drawn in one count and is bottomed on section 4520, Revised Statutes 1909; it states all tbe material facts necessary to constitute information, burglary in tbe second degree and grand An indictment identical in form as to its material averments is approved by this court in State v. Moss, 216 Mo. 436, following a like ruling in State v. Watson, 141 Mo. 338. Tbe information, therefore, is not subject to valid objection. II. Tbe prosecution of tbe two offenses in tbe same court of tbe information is expressly authorized by section 4528, Revised Statutes 1909. Tbe procedure authorized by this section has been repeatedly Burglary and Larceny. approved by this court, it being held that, if in the commission of a burglary a larceny is also committed, both offenses may be prosecu [606] ted under one count. [State v. Carpenter, 216 Mo. 442, and cases cited.] III.The objections made by defendant to the introduction of testimony on behalf of the State were purely technical. Great latitude was given the defendant in the introduction of testimony in his own Testimony. behalf. A full review of the entire record discloses no error in the admission o.r exclusion of testimony which by reasonable construction can be said to have proved prejudicial to the defendant. Testimony. IV. Although the amount of money found on the defendant’s person corresponding in description to that taken from the cash register was only $14.15, it Larceny! and having been shown that the larceny was committed in the. perpetration of a bur- . glary, the larcenous. taking constituted a felony irrespective of the value of the thing stolen. [State v. Yandle, 166 Mo. 589; State v. Moss, 216 Mo. 436.] V. The instructions given by the court on its own motion, none being asked by either the State or the defendant, clearly and fairly presented the law applicable to the case under the evidence, and are couched in language heretofore frequently approved Instructions. by this court in like cases. In other words, .. .... ...... 7 these instructions complied m every respect with the mandate of the statute (sec. 5231, R. S. 1909), which requires the court in felony cases, whether so requested or not, to instruct the jury in writing upon all questions of law arising in the case necessary for their information in finding their verdict. [State v. Conway, 241 Mo. 271.] VI. The jury in their verdict found the defendant guilty of burglary in the second degree and larceny as charged in the information, and assessed his [607] punishment at imprisonment in the penitentiary for a term of two years for the burglary and Verdict and Punishment. for an additional term of two years for the larceny. This is a clear and definite finding of guilty under each offense and prescribes the punishment in such manner as to indicate that the sentences thereunder were to he cumulative. There being no prejudicial error in this case, the judgment of the trial court is affirmed. Brown, P. J., and Faris, J., concur.