State v. Edmonds

• Decision Date: 12 June 1961
• Docket Number: No. 2,No. 48395,48395,2
• Citation: 347 S.W.2d 158
• Parties: STATE of Missouri, Respondent, v. Alvin Holt EDMONDS, Appellant
• Court: Missouri Supreme Court

Page 158

347 S.W.2d 158

STATE of Missouri, Respondent, v. Alvin Holt EDMONDS, Appellant.

No. 48395.

Supreme Court of Missouri, Division No. 2.

June 12, 1961.

Thomas F. Eagleton, Atty. Gen., Dale Reesman, Sp. Asst. Atty. Gen., for respondent.

Bruce Nangle, St. Louis, for appellant.

BARRETT, Commissioner.

A jury found Alvin Holt Edmonds guilty of 'burglary in the second degree and stealing.' He was charged in one count with both offenses, there was an allegation and proof of prior felony convictions, and the court in pronouncing sentence fixed his punishment at five years' imprisonment for each offense 'to run consecutively'--a total of ten years' imprisonment. Laws Mo.1959, H.B. 260, V.A.M.S. Sec. 560.110.

In three of his assignments in his motion for a new trial the appellant challenges the amendment and sufficiency of the information. At the outset the court is confronted with the state's claim that these assignments in his motion are lacking in detail and particularity (Sup.Ct. Rule 27.20, V.A.M.R.; V.A.M.S. Sec. 547.030) and that therefore the appellant has 'saved nothing for review.' The same contention is made against four assignments directed to or having to do with the appellant's claim that the evidence is not 'sufficient to allow the State to take said cause to the jury.' These matters are again briefly mentioned because there is a misconception as to the essential purpose and applicability of the statute and the rule. There are a few cases in which the court has inadvertently applied the rule or the statute to assignments relating to informations, and there may be some instances in which it is necessary to assign in detail objections to an information. But an information has always been a part of the record proper or 'upon the record' before the court (V.A.M.S. Sec. 547.270), and generally the sufficiency of the information is open for the court's consideration regardless of the particularity of the motion for a new trial. State v. Biven, Mo., 151 S.W.2d 1114, 1116; State v. Mallory, Mo., 336 S.W.2d 383, 384. So also as to the sufficiency of the evidence to sustain the conviction, an assignment that the verdict is against the 'weight of the evidence' preserves nothing for review because, as a general rule, the appellate court is not concerned with the weight of the evidence. But when a series of assignments in the totality of their effect or specifically challenge the substantiality of the evidence, the sufficiency of the evidence to sustain the verdict, and conviction is reviewable in this court. State v. Mallory, supra; State v. Washington, Mo., 335 S.W.2d 23; State v. Daegele, Mo., 302 S.W.2d 20, 23; State v. Henderson, 356 Mo. 1072, 1076, 204 S.W.2d 774, 777.

After alleging his prior convictions, the information here charges that on November 29, 1959, in the City of St. Louis Edmonds 'feloniously and burglariously, forcibly did break and enter (Garner's Market), with felonious intent then and there, and thereby feloniously and burglariously to steal, take and carry away the goods, wares, merchandise or other valuable things, or personal property, in the said store, shop and building then and there kept and deposited, and groceries and sundries of the total value of two hundred fifty-one dollars and sixty-three cents; cigarettes of the value of two hundred twenty-six dollars and forty-eight cents; all of the total combined value of four hundred seventy-eight dollars and eleven cents; of the goods, wares, merchandise or other valuable things or personal property, of the said Melvis Garner, doing business as Garner's Market * * * then and there permanently to deprive the owner of the use thereof and to convert the same to his own use * * *.' This language, admittedly, is so redundant and tautological as to be almost unintelligible; nevertheless, in one count it charges the offenses of burglary in the second degree, breaking into a building in which goods, wares and merchandise are kept (V.A.M.S. Sec. 560.070) and 'stealing,' appropriating or exercising dominion over the property of another (Laws Mo.1955, p. 507; V.A.M.S. Sec. 560.156). State v. Zammar, Mo., 305 S.W.2d 441; State v. Robinson, Mo., 325 S.W.2d 465. Thus the information 'alleges the essential facts constituting the offense,' the appellant did not file a motion for a bill of particulars because of its unintelligibility and therefore it must be assumed that he was sufficiently informed of the details 'to prepare his defense.' Sup.Ct.Rule 24.03.

As noted, the information alleged the theft of merchandise of the value of $478.11, but upon the trial of the case the proof was that two items stolen in the course of the burglary were 14 cases of coffee and 2 cases of chili of the inventoried value of 'around $350.00' and 228 or 238 cartons of cigarettes of the value of $400.00 or more.' After this proof the state was permitted to amend the information and charge the theft of '$350.00 sundry groceries and $400.00 of cigarettes.' An 'amendment' is a change or correction and 'as to all matters of form and variance' (V.A.M.S. Sec. 545.290) may, in the court's discretion, be made 'if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.' Sup.Ct.Rule 24.02. The appellant's claim is that the proof did not conform to the pleading, that the information was 'so vague and confusing' that it did not fully inform him of the offense and did not charge a crime under the laws of Missouri. For the reasons indicated these objections are without validity and there is no demonstration in his assignments that substantial rights were prejudiced by the amendment. State v. Mallory, supra; State v. Carson, Mo., 286 S.W.2d 750.

The facts, briefly, as the jury could find them were that Garner's Tom Boy Market is located at 1909 East Grand Avenue. On November 28, 1959, an employee closed the store, locked and bolted the front and rear doors. When the store was opened on November 30 it was discovered that the back door had been pried open, there were cleat-soled shoe tracks in the sawdust around the meat counter and cases of coffee and chili and cartons of cigarettes were missing. There were also some blankets and other items missing and leaning against the fence around the rear parking lot there was a spare tire and wheel from an automobile. Joseph Velders, who was in the army when the case was tried, had lived in the neighborhood for 17 or 18 years and on November 28, 1959, lived at 1923a East Grand Avenue. During the day Joe worked at American Fixtures and at night worked in a roller skating rink. On November 28 he left the roller skating rink about 10:30, took some friends home and about 12:45 a. m. drove on to the enclosed lot back of Garner's Market and parked his car. As he drove into the lot he saw 'two fellows' sitting in a black 1949 or 1950 Mercury in front of the store. There were two cars and a truck on the parking lot and Joe parked his automobile against the fence, 50 or 60 feet from the rear entrance of the store. As he 'shut my lights off,' one of the automobiles drove out of the lot and the Mercury drove in with its lights off. The two men in the Mercury backed the automobile up to the rear entrance of the store and Joe 'just sat down in the seat so they couldn't see me.' There was a light over the rear door of the store and Joe says that the driver of the Mercury got out, raised the trunk and placed a spare tire against the fence and got an object out of the trunk, 'looked like a crowbar.' This man, identified by Joe as the defendant Edmonds, reached up and unscrewed the light bulb and 'started banging on the door.' Joe described the defendant and his clothes. He saw the defendant enter the store, make 12 or 15 trips in and out carrying boxes which 'this other fellow' stacked in the automobile. As the two men drove away in the Mercury automobile Joe noticed that the right rear hub cap was missing and he wrote down the license number--Y83-495. On Sunday morning, November 29, Joe called a policeman, told him what he had seen, but said he wasn't positive that it was a burglary and 'just wait and see if I hear any rumors.' On Monday morning Joe went to Garner's store, told them what he had seen and gave police officers the license number he had written down. In addition to identifying Edmonds he identified the automobile. Investigation revealed that the license had been issued to Edmonds and that he owned the 1950 Mercury. From this information the police officers learned that Edmonds lived in the rear of 1306 Montgomery and on Monday parked at 14th and Montgomery streets and as he drove away in his 1950 Mercury automobile arrested him. In the trunk of his automobile there was a sledge hammer and a crowbar. The officers took Edmonds to 1306 Montgomery and in the presence of his mother and sister found a blue blanket, a pair of cleated rubber-soled shoes, a cap and other articles belonging to him. There are other circumstances but this proof is certainly substantial evidence of the defendant's guilt of burglary in the second degree and stealing. State v. Zammar, supra; State v. Robinson, supra. In some respects Velders' conduct may appear to be unusual, but his testimony was not 'so contradictory and contrary to physical facts that it is not worthy of belief.' His testimony was not discredited in any respect, and if contrary inferences were permissible the credibility of his testimony was resolved by the jury. State v. Peterson, Mo., 305 S.W.2d 695. Whether Velders timely reported what he had seen may bear on the credibility of his testimony, but in the absence of a specific request, the court was not bound to instruct the jury 'of the gravity of the omission of the State's Chief Witness, Velders, in that he failed to report a crime at or near the time of its commission.' State v. Reich, 293 Mo. 415, 239 S.W. 835; State v. Koch, 322 Mo. 106, 16 S.W.2d 205.

It is urged, in submitting the...