Opinion
March 15, 1939.
1. BURGLARY: Breaking and Entry. One of the essential elements of proof of a charge of burglary is that there must be a breaking into and an entry.
2. BURGLARY: Breaking and Entry. Where defendant was seen in a house which was claimed to be burglarized and there was no proof that the doors or windows had been secured or closed, a case was not made out of breaking into the house.
Appeal from Circuit Court of City of St. Louis. — Hon. Michael J. Scott, Judge.
REVERSED AND REMANDED.
Sigmund M. Bass and John Grossman for appellant.
Before the State can convict it must be established beyond a reasonable doubt that every material allegation in the information has been proven; a failure on the part of the State to do this entitles the defendant to an acquittal; to prove the corpus delicti the evidence must be sufficient to show affirmatively and beyond a reasonale doubt that there was such a breaking and entry as are necessary to constitute burglary. An examination of the evidence in this case fails to reveal the establishment of a corpus delicti; there was not a scintilla of evidence, nor the slightest suggestion of any fact, which tended to show how entry was effected, nor was there any evidence that any door, window or other opening in the house had been closed before the burglary, nor that any of these openings had been opened after. State v. Bates, 182 Mo. 73; State v. Goddard, 316 Mo. 172; State v. Hays, 252 S.W. 380; State v. Whalen, 248 S.W. 931; State v. Kennedy, 16 Mo. App. 287; Sorenson v. United States, 168 F. 791; Fisher v. State, 93 Ga. 309; State v. Moon, 62 Kan. 801; People v. McCord, 76 Mich. 200; Hayward v. State, 97 Neb. 9; 9 C.J. 1076, sec. 133. The allegation in the information as to the breaking and entering must be established by proof; and when the mode of effecting the entry is material under a statute it must be proved as alleged. The State failed to prove the allegation in the information as to the manner of breaking and entry. 9 C.J., pp. 1035, 1062, secs. 60, 116; Conner v. State, 14 Mo. 561; State v. Kennedy, 16 Mo. App. 287; Secs. 4042, R.S. 1929; State v. Hays, 252 S.W. 380; State v. Whalen, 248 S.W. 931.
Roy McKittrick, Attorney General, and Tyre W. Burton, Assistant Attorney General, for respondent.
(1) The information is sufficient in form and substance. Secs. 4042, 4067, 4068, R.S. 1929; State v. Yandle, 166 Mo. 589, 66 S.W. 532; State v. Burns, 263 Mo. 593, 173 S.W. 1070. (2) The verdict is in proper form and is responsive to the issues. State v. Gibson, 300 S.W. 1107. (3) The evidence is sufficient to support the verdict. State v. Orrick, 106 Mo. 124, 17 S.W. 176; State v. Harmon, 296 S.W. 395; 9 C.J., sec. 5, p. 1010; State v. Peebles and York, 178 Mo. 483, 77 S.W. 518. (4) The order of proof is largely in the discretion of the trial court. State v. Swisher, 186 Mo. 9, 84 S.W. 911; State v. Pierson, 85 S.W.2d 52, 337 Mo. 483. (5) The court did not err in admitting the statement of the assistant circuit attorney. State v. Pleake, 177 S.W. 358; State v. Lindsey, 333 Mo. 139, 62 S.W.2d 421. (6) The court did not err in refusing to give the instruction on circumstantial evidence. State v. Criger, 46 S.W.2d 538; State v. Mansker, 339 Mo. 913, 98 S.W.2d 672. (7) The court did not err in giving Instruction 1. 9 C.J., sec. 151, p. 1086. (8) The court did not err in giving the instruction on the credibility of witnesses. State v. Hamilton, 263 S.W. 130; Hagen v. Wells, 277 S.W. 583. (9) The court did not err in refusing to discharge the jury on account of the argument of the assistant circuit attorney. State v. Fike, 324 Mo. 801, 24 S.W.2d 1030; State v. Greer, 12 S.W.2d 89.
In the Circuit Court of the City of St. Louis, the appellant was convicted of burglary in the first degree and his punishment was assessed at imprisonment in the State penitentiary for a term of five years. From the judgment and sentence of that court, he has duly appealed.
The appellant's first assignment of error is that the trial court should have sustained his demurrer to the evidence. The information was based upon the third subdivision of Section 4042, Revised Statutes 1929, which declares the breaking into and entering the dwelling house of another, in which there shall be at the time some human being, with the intent to commit some felony or any larceny by unlocking an outer door by means of false keys, or picking the lock thereof, to be burglary in the first degree.
The evidence tends to show that Elizabeth Thompson lived with her parents at 5045 Lindell Avenue in the city of St. Louis; that on November 7, 1936, about 8:30 P.M., she started up the stairs; that she saw a man coming into the front hallway from the back hallway on the second floor of the house; that she later identified the appellant as the man she saw in the hallway; that four or five years previous to that time the appellant had worked as a butler in the Thompson home; that at that time he had a key to the side door; that when he left the employ of her father, Miss Thompson did not know whether or not he kept the key; that her brother, Rumsey Thompson, testified that his room was on the third floor of the house; that on the date in question he had left $30 in his room and that when he returned about midnight of that night this sum of money was missing; and that appellant was arrested two days later.
One of the essential elements of proof of a charge of burglary is that there must be a breaking into and an entry. If the doors and windows were left open, there could be no burglary. [State v. Bates, 182 Mo. 70, 81 S.W. 408; State v. Goddard, 316 Mo. 172, 289 S.W. 651; State v. Kennedy, 16 Mo. App. 287; State v. Wilson, 225 Mo. 503, 125 S.W. 479.]
The appellant's demurrer to the evidence should have been sustained as there was absolutely no evidence that the doors and windows had been secured or closed. In fact, there is no proof that the house had any doors or windows. Under the information, it was necessary for the State to prove that the appellant gained entrance to the house by means of a false key or by picking the lock. As above stated, there is no proof that the doors were closed, let alone that they were locked.
The State may be able at another trial to prove additional evidence tending to prove the appellant guilty as charged; if not, the prosecution must fail. The judgment of the circuit court is reversed and the cause remanded. All concur.