State v. Clemmons, KCD
| Decision Date | 26 February 1979 |
| Docket Number | No. KCD,KCD |
| Citation | 579 S.W.2d 682 |
| Parties | STATE of Missouri, Respondent, v. Eddie L. CLEMMONS, Appellant. 29768. |
| Court | Missouri Court of Appeals |
Clifford A. Cohen, Public Defender, Kevin R. Locke, Lee N. Nation, Asst. Public Defenders, Kansas City, for appellant.
John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
The defendant appeals from a judgment of conviction by a jury for tampering with a motor vehicle (§ 560.175.1, RSMo 1969) and the sentence of three years imprisonment imposed by the court upon the defendant as a second offender.
The defendant contends first that the information was insufficient to confer jurisdiction upon the court to sentence under § 556.280, RSMo 1969 (Second Offender Act), for failure to allege that the offense for which defendant had been previously convicted was "punishable by imprisonment in the penitentiary." The information recites that the defendant
plead(ed) guilty to stealing from the person, that, thereafter, on the 21st day of July, 1976, said defendant was sentenced to five (5) years with five (5) years probation.
These recitals sufficiently allege the three elements for invocation of the Second Offender Act: that the defendant was convicted of a prior offense punishable by imprisonment in the penitentiary; that he was sentenced for that offense; and that the judgment imposed probation, parole, fine or imprisonment. State v. Blackwell, 459 S.W.2d 268, 272(3) (Mo. banc 1970). The information does not employ the precise statutory words of art Punishable by imprisonment in the penitentiary but the allegations that the Defendant was sentenced to five (5) years with five (5) years probation states in pith the equivalent of the formal jargon that the defendant was sentenced to a term of five years Imprisonment in the penitentiary, that the execution of the sentence was suspended and that defendant was placed on probation for a term of five years which, if served without event, completes service of the sentence. The contention of error is denied.
The defendant contends also that the evidence that his fingerprints were found on the vent window of the car, absent proof of other circumstance, was not sufficient to convict him of the charge of tampering.
The evidence was that a 1974 Volkswagon was broken into and a packet of textbooks in a plastic bag and a transistor radio stolen from the passenger side of the front seat. The vehicle belonged to James Smith, a Kansas City police officer, who had driven to work at about 2:30 p. m. and parked the car at the employment site. At about 10:30 p. m. that day, while still on duty, Officer Smith stopped his police car along side of the Volkswagon, opened the door on the passenger side, and placed another textbook there. He saw nothing amiss but took no special notice to whether the transistor and other books were still there. Some twenty minutes later, at about 10:50 p. m., Officer Smith left duty and, once inside the Volkswagon, noticed that the vent window on the driver's side pointed outward. He noticed then that his books and transistor were gone, and so returned to the police station to enlist another officer for help. The two officers, Smith and Rast, tested the car for fingerprints and those lifted were transmitted to a special police unit for identification. The prints taken, one from the outside of the broken vent window and one from the inside, were identified as those of the defendant. There is no contention of faulty identification, but only that the proof was not sufficient for conviction. At discovery of the entry and loss, Officer Smith search for his property and discovered the plastic bag, the books still inside, on the sidewalk some fifty feet from the car. No attempt was made to obtain fingerprints from the bag, however, because they concluded a plastic surface does not retain such marks.
It was the testimony of Officer Smith that the...
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...State v. Anderson, 671 S.W.2d 383 (Mo.App.1984) (burglary); State v. Sanders, 619 S.W.2d 344 (Mo.App.1981) (burglary); State v. Clemmons, 579 S.W.2d 682 (Mo.App.1979) (tampering); State v. Parker, 535 S.W.2d 126 (Mo.App.1976) As to the charge of first degree burglary, the jury had to find b......
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...and defendant were carrying when he confronted them a half hour later, three-fourths of a mile from MidWest Motors. In State v. Clemmons, 579 S.W.2d 682 (Mo.App.1979), the accused was convicted of tampering with a motor vehicle, § 560.175.1, RSMo 1969. He argued on appeal that the evidence ......
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State v. Hulbert, WD
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