State v. Cline

• Decision Date: 10 November 1969
• Docket Number: No. 53357,53357
• Citation: 447 S.W.2d 538
• Parties: STATE of Missouri, Respondent, v. Clarence N. (Bucky) CLINE, Appellant.
• Court: Missouri Supreme Court

Page 538

447 S.W.2d 538

STATE of Missouri, Respondent, v. Clarence N. (Bucky) CLINE, Appellant.

No. 53357.

Supreme Court of Missouri, En Banc.

Nov. 10, 1969.

Rehearing Denied Dec. 8, 1969.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.

Alex Bartlett, Hendren & Andrae, Jefferson City, for appellant.

FINCH, Judge.

Defendant was charged in a one court information with the offenses of burglary and burglarious stealing under § 560.110 (all references are to RSMo 1959, V.A.M.S., unless otherwise indicated). The jury selected one of four verdict forms given to it by the trial court and found defendant to be guilty of 'felonious and burglarious stealing as charged'. The court, having found that defendant had three prior felony convictions, sentenced him under the Second Offender Act and fixed his punishment at ten years in the custody of the Missouri Department of Corrections. Defendant has appealed. We reverse and remand.

This case is written following recent reassignment. Judge Storckman wrote an opinion in this case in Division, I, after which the case was transferred to the Court en Banc on the court's own motion. Portions of that opinion are utilized herein without the use of quotation marks.

A brief statement of the facts will suffice since the sufficiency of the evidence to support the verdict is not challenged.

On the night of January 3, 1966, the Farmers Exchange in Stotts City, Missouri, was forcibly entered. When the employees came to the store the next morning they found the door broken open and some merchandise missing. An inventory was taken and a list of the missing items was prepared. On January 4, a deputy sheriff of Jasper County, Missouri, acting under search warrants, took from defendant's home is Carthage various items of clothing and merchandise, some of which were positively identified at the trial as having been taken from the Stotts City Farmers Exchange at the time in question. Other items (also recovered by the deputy sheriff from defendant's home in Carthage) which store personnel testified were similar to the stolen articles were not submitted in evidence on the ground that witnesses had not positively identified them for lack of distinctive markings. The defendant did not take the stand, but his wife supported his alibi defense. Two other witnesses testified that they were at defendant's home on the morning of January 4 when an unidentified person in an old automobile delivered two boxes to the defendant. The witnesses further testified that the defendant asked them to sign a paper to 'witness this stuff he bought'.

The trial court gave instructions to the jury which would permit it to convict defendant of burglary and of stealing in connection therewith, or to convict of burglary only, or to convict of petty stealing only, or to acquit on all charges.

The jury was handed four separate verdict forms providing for these possible verdicts: (1) guilty of burglary in second degree as charged; (2) guilty of felonious and burglarious stealing as charged; (3) guilty of petty stealing as charged; and (4) not guilty.

The jury selected the second form and returned a verdict which stated: 'We, the Jury, find the defendant, Clarence Norman Cline, guilty of felonious and burglarious stealing as charged.'

On the basis of the above verdict, the trial court assessed defendant's punishment at ten years' imprisonment. For reasons we subsequently point out, it is clear that such judgment and sentence cannot stand. Section 560.110, the statute under which this information was filed, allows the joint prosecution of burglary and of stealing committed in connection therewith and provides as follows:

'1. If any person in committing burglary shall also commit a crime of stealing, he may be prosecuted for both offenses in the same count, or in separate counts of the same indictment, and, on conviction of such burglary and stealing, shall be punished by imprisonment in the penitentiary, in addition to the punishment herein prescribed for burglary, not less than two nor exceeding five years.

'2. Notwithstanding the provisions of section 546.480, RSMo, the court shall state in pronouncing sentence whether the additional term of imprisonment provided herein is to run consecutively or concurrently. In the event that the court fails to determine at the time of pronouncing sentence how the terms of imprisonment shall run in relation to each other, the terms of imprisonment shall run concurrently.'

The punishment for second degree burglary (defined in § 560.070) is fixed by § 560.095 at imprisonment for not less than two nor more than ten years. However, that section cannot justify the ten year sentence because defendant was sentenced for burglarious stealing, not burglary. The punishment fixed in § 560.161 for grand stealing (§ 560.156) also is not less than two nor more than ten years' imprisonment, but that section also could not authorize the punishment imposed by the trial court because defendant was charged with and convicted of stealing in connection with a burglary under § 560.110, not grand stealing under § 560.161. The maximum sentence under § 560.110 is imprisonment for five years.

Reducing the sentence in this court or sending the case back merely for resentencing would not solve the situation because the verdict herein is not responsive to the issues raised by the information or as submitted under the court's instructions. Instruction No. 1 informed the jury to consider first the issue of whether defendant was guilty of burglary, and, if they so found, then to determine whether he was guilty of stealing in connection therewith. Instruction No. 3 told the jury that it could convict the defendant of both burglary and stealing incidental thereto, or could acquit of both, or could convict of burglary and acquit of the stealing, but did not authorize the jury to acquit of burglary but convict of burglarious stealing. In addition, Instruction No. 7 defined 'burglariously' to mean 'the willful doing of an act of breaking and entering with the intent to commit a crime.' In spite of those instructions, the jury verdict made no express recital of guilt or innocence on the charge of burglary.

Defendant asserts that where, as here, the integrated separate offenses of burglary and stealing are charged in a single information pursuant to § 560.110, the jury must make a prior finding of a burglary by defendant before it can find defendant guilty of burglarious stealing. If there is not a burglary, there cannot be stealing incidental to a burglary.

There is no doubt that this court in the past has held that a defendant charged with burglary and stealing may 'in effect' be acquitted of burglary and yet be convicted of stealing 'burglariously' or in connection with a burglary. Cases which recognize or permit such a result include State v. Barbour, 347 Mo. 1033, 151 S.W.2d 1105; and State v. Burns, 263 Mo. 593, 173 S.W. 1070. These and other similar cases indicate considerable confusion as to the issues which may be submitted in a burglary and stealing prosecution under § 560.110 and what verdicts are justified. The verdict in this case and the contentions of defendant suggest that a reappraisal should be made of the issues which properly may be submitted under § 560.110 and the kinds of verdict permissible when a prosecutor chooses to proceed under the statute. The most reliable approach is to determine the legislative intention from the language of § 560.110 and related statutes.

The first general stealing statute was enacted in 1955 to replace numerous sections relating to larceny and other offenses against property. Laws 1955, p. 507. In 1957, § 560.110 and other statutes were amended to conform to the new stealing statutes by changing the term 'larceny' to 'stealing'. Laws 1957, pp. 374--377. At that time § 560.110 consisted solely of that portion which is subdivision one of the present statute. In 1956 this court en banc held that in a prosecution under § 560.110 a separate term of imprisonment must be fixed for each offense and a court was powerless to order that the term of imprisonment for the offense then designated larceny should run concurrently with the term of imprisonment for burglary. State ex rel. Dalton v. Blair, 365 Mo. 1167, 294 S.W.2d 1, 3(1). In 1959 the general assembly nullified this decision by adding subsection two to § 560.110 which in substance provided that notwithstanding the provisions of § 546.480 the court could make the additional term for stealing run concurrently with the burglary term and that the terms should run concurrently if the court at the time of pronouncing sentence did not indicate how they should run in relation to each other. Laws 1959, H.B. No. 260; State v. Taylor, Mo., 336 S.W.2d 495, 499(8).

Section 560.110 (as does Supreme Court Rule 24.04, V.A.M.R.) allows the two separate but related offenses to be charged in the same indictment or information. The prosecutor is not compelled to do so. In his discretion, he may prosecute stealing offenses separately under other appropriate statutes. However, if he elects to proceed under § 560.110, he had chosen to make the stealing a dependent offense subject to the penalties provided in that section of the statute; that is, the defendant on conviction of such burglary and stealing shall be punished for the stealing by imprisonment in the penitentiary for not less than two nor more than five years in addition to the punishment prescribed for burglary.

There is a clear legislative intention to provide a specific and exclusive punishment for stealing in connection with a burglary which is separate and apart from the penalty for grand or petty stealing under § 560.161. This distinction has not always been observed by the courts. The adjudicated cases offer no satisfactory explanation of how a defendant can start out with a charge of burglary...