State v. Burns

• Decision Date: 09 March 1959
• Docket Number: No. 2,No. 46677,46677,2
• Citation: 322 S.W.2d 736
• Parties: STATE of Missouri, Respondent, v. Dwight BURNS, Appellant
• Court: Missouri Supreme Court

Page 736

322 S.W.2d 736

STATE of Missouri, Respondent, v. Dwight BURNS, Appellant.

No. 46677.

Supreme Court of Missouri, Division No. 2.

March 9, 1959.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 13, 1959.

Henry G. Morris, Frank E. Doyle, James C. Porter, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Richard R. Nacy. Jr., Special Asst. Atty. Gen., for respondent.

EAGER, Judge.

Appellant, Dwight Burns, was convicted of grand larceny and imprisonment for five years was assessed. The jury found him not guilty of burglary, and made no finding on a charge of prior felony convictions. We shall refer to appellant as the defendant. He and others were charged by information filed in St. Francois County with burglary and larceny, but a change of venue was granted to Ste. Genevieve County; a severance was also granted and defendant was tried separately. The offense charged occurred on August 11, 1955, and it was, therefore, subject to the provisions of Secs. 560.155 and 560.160, RSMo 1949, V.A.M.S., defining and fixing the punishment for grand larceny. (All statutory references will be to RSMo 1949, V.A.M.S., unless otherwise stated.) The present statutes on 'Stealing,' Secs. 560.156 and 560.161, 1957 Supp., first became effective on August 29, 1955. Motion for new trial was regularly filed and overruled, and sentence was imposed.

The charge was of burglarizing the house of one Taff Skaggs and of stealing and carrying away various groceries of the value of $35. Various items were listed in the information by name, and at the trial the State was allowed to amend by adding, after the items so listed, the words 'miscellaneous groceries and tobacco.' The evidence of the State fairly showed the facts now related. Taff Skaggs, his wife Sara Mae, and their five children lived in a two-room house, not entirely completed, on Highway 47 west of Bonne Terre in St. Francois County. This house had one door, one window opening covered with sheet metal, and a dirt floor. One or both of the parents received monthly checks for child aid; this income was apparently the family's then sole means of support. The father's sight was seriously impaired. Shortly before noon on August 11, 1955, the family went to a store at Mineral Point, and bought groceries for a month, paying $43.63 out of a child-aid check. Mrs. Skaggs received a grocery ticket or bill, listing the items, and consisting of three small sheets. Most of the groceries were placed in two boxes but three items were carried separately. When the family returned home early in the afternoon they put the groceries in the house, locked the door, and went to get drinking water at a church some two miles or so away. They rode in an old car, driven by a deaf and dumb boy. When they returned they saw, from the highway, that defendant's car was parked in their yard; they also saw defendant coming around the house with a box of groceries, and one George Nash following him with another box of groceries; a woman described as Pat Jolly was at the car holding the door open, and a girl named Mary Smith was sitting in the car. Nash fell down and spilled his groceries, but defendant picked them up and (in the words of Mrs. Skaggs) 'throwed' em in the car.' Thereupon the intruders drove off down the highway. The defendant was definitely identified. Mr. and Mrs. Skaggs looked hurriedly in the house, saw that all the groceries were gone except a bucket of lard, two dozen eggs and a sack of potatoes (which had not been in the boxes), and that the metal sheet was torn from or pried off of the window. They then drove to her brother's house, several miles away, to which place the defendant and his named associates came a little later, stopping outside. It appears that the Skaggses supposedly owed defendant some money on the purchase of a car, and owed Nash $3 on a washing machine. Mrs. Skaggs paid defendant $5 and Nash $3, out in the road in front of her brother's house; she testified that she thought that if she did so they might give the groceries back; however, they did not. Apparently, neither Mr. nor Mrs. Skaggs thought himself or herself in position to challenge the defendant and his cohorts at any time about taking the groceries. Mr. Skaggs reported the matter to the authorities the next morning and defendant was arrested. Evidence was received without objection: that Nash had admitted orally to a Sergeant of the Highway Patrol that he and the defendant had taken the groceries from the home and that they had pried 'the tin off the window'; also, that defendant had stated orally to the officer that he was at the house, but that he did not take the groceries or break in, and that they went there because 'these people owed them some money.' The Skaggses had known the defendant, Nash, and Pat Jolly for years; Pat Jolly was also referred to as Mrs. Dwight Burns. Some of the foregoing testimony was corroborated by Mary Smith (Peppers) who had since been married and separated. Her testimony was objected to, but the objection is not briefed here and is therefore waived. She testified: that she did not see defendant carry out any groceries, but that there were some in the car when she got back from 'under the bridge'; that Nash dropped some groceries and the defendant helped 'put 'em in the car'; that 'they' said George had gotten in through the window; that Mrs. Skaggs 'motioned for 'em to stop'; that after they left the house Nash and defendant put the groceries in the trunk; also, that she told defendant and Nash, 'in a joking way,' that they ought to give the groceries back after Mrs. Skaggs had paid them the money; that, however, they all drove to a house which she 'guessed' was Burns' and Pat Jolly's and she and Pat helped put the groceries in the cabinet. This girl was 15 years old at the time of the occurrence and 18 at the time of trial. Other facts will be referred to in the course of the opinion.

We note here that the statement of facts in appellant's brief is in direct violation of Rule 1.08(b), 42 V.A.M.S. Except for a recital of the contents of the information, it consists solely of detailed statements of the testimony of each witness, separately; such statements may properly follow a general statement of the facts, if desired, but they should not be used to replace the 'fair and concise statement' of all the relevant facts required by the rule. We shall consider the merits in this instance as certain matters of public interest are involved.

It is urged that the State failed in its proof. It seems obvious from the foregoing that the evidence was sufficient to prove the elements of larceny. The groceries were gone, and defendant was definitely identified as one of those who actually carried them away. (See Sec. 560.155.) It was wholly unnecessary under the circumstances to identify the specific items contained in the boxes as they were being carried away. Defendant was acquitted of burglary and the elements of that offense are not involved. The information charged that the groceries 'were the property of Taff Skaggs'; and defendant now argues that this was not proven. On this point defendant cites no authority. It is certain from this evidence that they were the property of Skaggs or his wife, or both. Section 546.080 provides expressly that any variance between the statement in an information and the 'evidence offered in proof thereof, * * * in the ownership of any property named or described * * *' shall not be ground for acquittal unless the trial court shall find such variance to be material and prejudicial. And see on this point: State v. Quinn, Mo., 142 S.W.2d 79; State v. Sturrs, Mo., 51 S.W.2d 45, 46; State v. Smith, Mo., 252 S.W. 662, 665; State v. Barker, 64 Mo. 282. The principle announced in the statute has long been the fixed law. There is no showing that this point was ever raised in or presented to the trial court; certainly, it made no finding thereon. The point is wholly without merit. Counsel also urge that the State failed to prove that the value of the groceries taken was $30 or more. This contention is primarily directed at the order permitting the amendment of the information by adding the words: 'miscellaneous groceries and tobacco'; this, of course, allowed proof of the theft of additional items. We need not discuss the contention or the amendment, for the judgment is to be reversed on other grounds, and the State will have ample opportunity to take such action as it may deem appropriate, considering the extended objections made here.

The following facts were developed at the hearing of defendant's motion for a new trial, upon the assignment that defendant was deprived of a fair trial by reason of the conduct of the prosecuting attorney. We glean these facts largely from the testimony of the prosecutor, Mr. David L. Colson. In or prior to November, 1956, Mr. Colson, then an attorney of St. Francois County, but not yet in office as prosecutor, interviewed defendant in the jail at Farmington at the latter's request and was then employed by him as counsel. At that time defendant gave to Mr. Colson a money order; upon cashing this he took $60 as a partial fee, returning the balance of the proceeds. Later, and in November, defendant consulted Mr. Colson at his office and a rather lengthy statement or memorandum of the facts was written by Mr. Colson, which is shown in full in the record here. This, generally, outlined defendant's version of the whole affair; essentially, it demonstrated that defendant admitted his presence at the Skaggs' place, but laid the theft on George Nash. At the time of this interview Mr. Colson had been elected Prosecuting Attorney of St. Francois County; he subsequently took office on January 1, 1957. The case was then set for trial on December 14, 1956. Mr. Colson told defendant or his St. Louis counsel that he could not represent defendant after the first of the year; he felt that he could 'get him...