State v. Eaton, 57593

• Decision Date: 10 December 1973
• Docket Number: No. 2,No. 57593,57593,2
• Citation: 504 S.W.2d 12
• Parties: STATE of Missouri, Respondent, v. Ellis EATON, Jr., Appellant
• Court: Missouri Supreme Court

Page 12

504 S.W.2d 12

STATE of Missouri, Respondent, v. Ellis EATON, Jr., Appellant.

No. 57593.

Supreme Court of Missouri, Division No. 2.

Dec. 10, 1973.

Motion for Rehearing or to Transfer to Court en Banc Denied

Jan. 23, 1974.

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

Clevenger & Lay, William D. Lay, Platte City, for appellant.

HOUSER, Commissioner.

On December 13, 1971 Ellis Eaton, Jr. appealed from a judgment entered upon a jury verdict finding him guilty of burglary in the second degree and stealing, and sentencing him to a term of 5-years' imprisonment on each charge, the terms to run consecutively.

Two briefs have been filed on appeal, one by appellant acting pro se, the other by court-appointed counsel.

In his pro se brief appellant first asserts that the court was without jurisdiction to impose judgment and sentence and that all proceedings are void because no complaint was filed in the magistrate court, as required by Rule 21.08, V.A.M.R., and § 544.020, RSMo 1969, V.A.M.S. This assertion is without foundation. This prosecution was commenced by filing in the magistrate court a paper writing denominated 'Affidavit for State Warrant,' subscribed and sworn to by the prosecuting attorney before the magistrate judge, deposing that on August 16, 1971 in Platte County, Ellis Eaton, Jr. wilfully, etc. broke and entered the building of Billy D. Rule located at 128th Street and N.W. Skyview with felonious, etc. intent to steal certain goods, etc. kept in said building and did feloniously, etc. steal two rifles and a revolver, specifically described, of the value of over $50, the personal property of said Rule, with felonious intent to deprive the owner of thier use and to convert same to his own use, contrary to form of the statute and against the peace and dignity of the State of Missouri. Although denominated 'Affidavit for State Warrant' (instead of 'Complaint') the paper constituted a good and valid complaint, written in sufficient detail to properly and fully notify and inform the defendant of the crimes of burglary and stealing of which he was being accused, and sufficient to comply with the court rule and statutory provisions relating to complaints.

Acting pro se, appellant asserts that the information is fatally defective for failure to identify the building that was burglarized, citing State v. Dale, 141 Mo. 284, 42 S.W. 722 (1897), which held that an indictment for second degree burglary of a building designated in the then-existing statute (shop, store, booth, tent, warehouse, etc.), in describing the building, must employ the statutory word (as shop, store, etc.) and if to such place the statute adds a descriptive phrase, it must be alleged. The statute construed in State v. Dale was repealed in 1899, and State v. Dale was overruled in State v. Linders, 299 Mo. 671, 253 S.W. 716, 719 (1923). Present § 560.070, RSMo 1969, V.A.M.S., under which appellant was prosecuted, reads as follows in pertinent part: 'Every person who shall be convicted of breaking and entering any building, the breaking and entering of which shall not be declared by any statute of this state to be burglary in the first degree, * * * shall, on conviction, be adjudged guilty of burglary in the second degree.' (T)he dwelling house of another, in which there is at the time some human being,' is the statutory description of the building the breaking and entering of which is declared to be burglary in the first degree under § 560.040, RSMo 1969, V.A.M.S. The instant information as amended describes the building alleged to have been burglarized as 'a building located at 128th Street near N.W. Skyview, the property of Billy D. Rule, * * * (in which) certain goods, wares, merchandise or personal property (were) then and there kept and deposited.' This is sufficient, it not being necessary to allege a negative, i.e., that the building is not the dwelling house of another, in which there is not at the time some human being; sufficient to give appellant notice of what building he was charged with having burglarized, to enable him to prepare his defense, and to bar subsequent prosecution for the same offense. In State v. Person, 234 Mo. 262, 136 S.W. 296, 297(1) (1911), a second degree burglary prosecution under the statute which is now § 560.070, an information describing the building as 'a certain beerhouse of one R. C. Knight, the same being a building in which beer, goods, and merchandise, and other valuable things were then and there kept and deposited,' was held 'entirely sufficient to charge an offense under this section.' The instant description went further and not only located the building on 128th Street but also alleged its nearness to N.W. Skyview. In State v. Sallee, 436 S.W.2d 246 (Mo.1969), a second degree burglary case, the information alleged that the dwelling house burglarized was the property of Mr. and Mrs. Robert D. Jennings. No address was mentioned. On appeal it was contended that the information was fatally defective because the address of the dwelling house was not set out. This contention was rejected, the court saying, 'The failure to allege the address does not make this information legally insufficient. It was sufficiently definite to enable the defendant in this case to prepare his defense * * * (and to bar) subsequent prosecution for the same offense.' 436 S.W.2d l.c. 251(6).

Appellant's third pro se point on appeal is that the State deliberately suppressed fingerprints found at the scene of the crime, fingerprints which did not belong to appellant or connect him with the crime and which, if brought forth by the prosecutor, would have tended to clear him of the charge. This question is not here for appellate review for the reason that it was not assigned as error in either of the two motions for new trial. Appellant makes the unsubstantiated assertion in his pro se brief that the issue was raised in the trial court by a supplement to the motion for new trial, but a supplemental motion raising this issue does not appear in the transcript. Nor is this a matter for review under the plain error Rule 27.20(c).

Attending to the brief filed on behalf of appellant by his court-appointed counsel, the first point is that the evidence is insufficient to sustain the conviction for the reason that appellant produced a number of alibi witnesses who gave 'clear and uncontradicted' evidence that appellant was in Kansas City at the time the Rule home was broken into; that the prosecutor made no connection between appellant and the burglars, and the jury could only have based its verdict of guilt on speculation and surmise. This argument assumes the truth of the testimony given by the alibi witnesses, but the jury could believe or disbelieve the alibi testimony. 'Appellant's denial of the charge and the proof in support of his defense of alibi merely presented an issue of fact for the jury, * * *.' State v. English, 11 S.W.2d 1020, 1022(3) (Mo.1928). It is the function of the jury and not of this Court to resolve differences and inconsistencies between the testimony offered by the prosecution and that of the alibi witnesses offered by the defendant. Zammar v. United States, 217 F.2d 223 (8th Cir. 1954). In determining the sufficiency of the evidence to sustain the verdict the reviewing court does not weigh the State's evidence against the contrary evidence offered by the defendant. State v. Roach, 480 S.W.2d 841 (Mo.1972). The scope of appellate review extends only to a determination of whether there is sufficient substantial evidence to support the verdict. A short summary of the State's evidence follows. While both Mr. and Mrs. Rule were absent from their residence on 128th Street in North Kansas City the home was burglarized. A General Electric television set and several shotguns were stolen from the place. The burglary occurred between 2:55 p.m., when Mrs. Rule left the house, and 6:15 p.m., when the burglary was discovered. At 8:16 p.m. appellant was stopped in Kansas City while operating a motor vehicle in which the items stolen earlier in the day were found, along with a weapon and the following burglar tools: a pair of pliers (the handle of which 'fit perfectly' the marks made in the door of the house that was burglarized), a crowbar, a tire iron, a keyhole saw, a hacksaw, a one-inch drill bit and a drill brace. The foregoing is sufficient substantial evidence to support the verdict of burglary second degree and stealing. 'Evidence of burglary and of recent, exclusive and unexplained possession of stolen property is sufficient to submit a burglary and stealing case to the jury and to convict the accused of both offenses, (citing four Missouri cases) * * *.' State v. Robb, 439 S.W.2d 510, 513(3) (Mo.1969).

Appellant objects that on voir dire examination the court failed to sustain his challenges of the following veniremen for cause: Ottman (because his brother-in-law was a member of the Kansas City Police Department and three members of that department testified as witnesses in the case); Schmitd (because his next-door neighbor was a member of the Kansas City Police Department); Allison (because she had a T.V. set stolen six years ago and a chain saw and two shotguns stolen recently); McDaniel (because he was chief finance auditor for the Kansas City Post Office Department in charge of agents who investigate burglaries, holdups, embezzlement and other postal system crimes and testify in federal court in government criminal cases). ¹

State v. Cashman, 485 S.W.2d 431 (Mo.1972) presents a remarkably similar situation. In Cashman two prospective jurors were challenged for cause based upon their relationship to law enforcement officials. The denial of the challenges was held not error because they stated their connection with the law enforcement officials would not affect their ability to consider the case impartially. In the case...