State v. Jackson

• Decision Date: 03 September 1980
• Docket Number: No. 11837.,11837.
• Citation: 604 S.W.2d 832
• Parties: STATE of Missouri, Respondent, v. John JACKSON, Appellant.
• Court: Missouri Court of Appeals

604 S.W.2d 832

STATE of Missouri, Respondent, v. John JACKSON, Appellant.

No. 11837.

Missouri Court of Appeals, Southern District, Division One.

September 3, 1980.

COPYRIGHT MATERIAL OMITTED

Gene A. Hilton, Camdenton, for appellant.

John Ashcroft, Atty. Gen., Frank J. Murphy, Paul R. Otto, Asst. Attys. Gen., Jefferson City, for respondent.

FLANIGAN, Chief Judge.

Count I of the information charged defendant with attempted burglary in the second degree (§ 560.070; § 556.150)¹ and Count II charged him with possession of a burglar's tool (§ 560.115). A jury found defendant guilty under both counts. The punishment imposed was two years imprisonment for each offense, the terms to run consecutively. Defendant appeals.

Defendant's first point is that Count I of the original information was fatally defective in that it failed to charge two elements of the offense and that the trial court erred in permitting the state to amend the information to include the omitted elements. Defendant argues that the defects in Count I deprived the trial court of jurisdiction with respect to that count and that it was not amendable. Defendant also argues that he was denied his "right" to a preliminary hearing on Count I as amended.

Defendant asserts that Count I of the original information was defective in the following respects: (1) There was no allegation as to the ownership of the building which was the subject of the attempted burglary; (2) There was no allegation that defendant had the intent to steal or commit any crime within the building.

With respect to the first defect defendant relies upon State v. Rains, 537 S.W.2d 219, 226 (Mo.App.1976) where it is said: "The usual holding is that an information for burglary must allege the ownership of the building burglarized; otherwise it is fatally defective." With regard to the second defect defendant relies upon State v. Vandergriff, 403 S.W.2d 579, 5816 (Mo.1966), holding that a second degree burglary information is defective for failing to charge the appropriate intent.

The instant offense occurred on July 15, 1975, which was prior to the effective date of the new Criminal Code. Count I of the information purported to charge attempted burglary, not burglary itself. In State v. Dentman, 588 S.W.2d 508, 510 (Mo.App. 1979) the court said: "This offense was committed prior to the effective date of the new Criminal Code. To properly charge an attempt to commit a crime, the information must have contained three elements: (1) the intention to commit the crime; (2) performance of some act toward the commission of the crime; and (3) the failure to consummate its commission. § 556.150 RSMo.1969; State v. Fletcher, 512 S.W.2d 2532 (Mo.App.1974)." Assuming but not deciding that the two defects, which would be fatal to an information charging burglary, are also fatal to an information charging attempted burglary,² this court holds that defendant's position is unsound.

The original information identified the building, which was the subject of the attempted burglary, as "Camdenton Medical Center in Camdenton, Missouri." The court permitted the state to amend the information by inserting, immediately following the designation of the building, the following: "the property of Camdenton Medical Center, Incorporated." The state was also permitted to amend the information by adding the language, "with the intent to take, steal and carry away certain goods, wares and merchandise kept and deposited in said building" to remedy the second alleged defect.

Although defendant is correct in his assertion that a sufficient information is a jurisdictional requirement³ it does not follow that a fatally defective information is not amendable. At the time of the instant proceedings, Rule 24.02 was in effect. "Criminal Rule 24.02, V.A.M.R., supplanting §§ 545.290 and 545.300 provides that an information may be amended `* * * at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.' The Rule is as broad as §§ 545.290 and 545.300, which permit amendments in matters of form or substance at any time before trial. Section 545.300, first appearing in Laws of 1925, page 194 (§ 3564, RSMo 1929), provides that `* * * no such amendment shall be allowed as would operate to charge an offense different from that charged or attempted to be charged in the original information.'" State v. Starks, 419 S.W.2d 82, 84 (Mo.1967). (Emphasis in original.)

Missouri cases are to the effect that even if an essential element is omitted from the original information, it may be supplied by amendment if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced. Johnson v. State, 485 S.W.2d 73, 75 (Mo. 1972); State v. Jarrett, 481 S.W.2d 504, 507 (Mo.1972); State v. Morris, 470 S.W.2d 467, 469 (Mo.1971); State v. Lafferty, 416 S.W.2d 157, 160 (Mo.1967).

The amendments to Count I were of the type permitted under Rule 24.02 and the foregoing authorities. The amended information, as stated in Johnson, supra, "merely correctly and sufficiently charges the offense attempted to be charged in the original information."

Defendant was accorded a preliminary hearing and there is no merit in his contention that the two amendments to the information entitled him to another. Johnson v. State, supra, at 753.

Defendant's first point has no merit.

Defendant's second point is that the evidence, with respect to each count, is insufficient to support the verdict.

Whether or not the circumstantial evidence is sufficient to support the conviction must be ascertained by the application of the test set forth in State v. Thomas, 452 S.W.2d 160, 1621-3 (Mo.1970). Thomas holds that the facts and circumstances relied upon by the state to establish guilt "must not only be consistent with each other and with the hypothesis of defendant's guilt, but they must also be inconsistent and irreconcilable with his innocence and must point so clearly and satisfactorily to his guilt as to exclude every reasonable hypothesis of innocence."

The circumstances need not be absolutely conclusive of guilt and they need not demonstrate an absolute impossibility of innocence. State v. Taylor, 445 S.W.2d 282, 2845 (Mo.1969). Circumstantial evidence showing merely that the defendant had an opportunity to commit the offense charged and creating a suspicion of guilt, without more, is insufficient to make a submissible case. State v. McGlathery, 412 S.W.2d 445, 4473 (Mo.1967). As McGlathery points out, at p. 447, "Application of the rules is, of course, a case to case matter, with prior cases, based on necessarily different facts, of minor authoritative impact."

The Camdenton Medical Center is located on Highway 5 North in Camdenton. The building is rectangular, with an attached three-car garage in the rear or east side of the building. The north end of the garage is enclosed by a wall, the west wall of the garage is the east wall of the building, and the south end of the garage is enclosed by a wall of the building in which is located a door affording access to the building. The east side of the garage is open with three pillars forming three parking stalls.

The building is equipped with a silent burglar alarm. When the circuit is broken an alarm is sent automatically to the sheriff's office and to the home of each physician. Dr. Melvin Hayden, who left the building at 9:40 p. m., "turned the alarm system on when I left." Drugs and other valuable things were in the building. Dr. Hayden also testified that the building was owned by the corporation named in the information.

At 11:20 p. m. the burglar alarm sounded and the dispatcher at the sheriff's office notified Camdenton Police Chief Orville Whipperman, who was in a patrol car. Whipperman, driving fast, proceeded immediately to the Camdenton Medical Center where he arrived at 11:22 p. m. Whipperman "headed around toward the back of the garage" and stopped his vehicle with the headlights shining on the south portion of the garage. Whipperman saw the defendant "coming out of the south side of the garage building." Immediately thereafter Whipperman saw a man, later identified as Jerry Hayes, coming out of the north end of the garage. Arriving on the scene at that time were two other police cars, one driven by deputy sheriff Miller and one by officer Christenson.

Defendant and Hayes were searched and handcuffed. Whipperman went back into the garage area and examined the door. According to Whipperman, the door was "cracked open about an inch and there were considerable pry marks on it." After the defendant had been given the Miranda warnings defendant told Whipperman that he and Hayes were hitchhiking and "they went in there to go to the bathroom and possibly spend the night." The officers searched the area. A flashlight was found on the north side of the garage, the area from which Hayes emerged.

Whipperman testified, without objection, that "a jimmy or a tire tool called a jimmy" was found on the floor of the south portion of the garage. The tire tool had fresh pry marks and scratches. "The pry marks on the door were made by a sharp instrument or a bar of some sort. There was no rust underneath the marks and they were shiny."

Officers Christenson and Miller remained at the scene until the doctors arrived. Miller went inside the building and looked around. No one was inside. According to Miller the tire tool was lying on the floor of the garage five to seven feet from the door. "There were some marks on the end of the tire tool with some paint the same color as on the door." Miller had checked the door the evening before and there were no pry marks or other evidence of attempted entry on it at that time.

The inside of the door was braced with a "2 × 6" which prevented the door from being opened more than an inch. At the top of the door was the "security breaker" for the...