State v. Kiddoo
| Decision Date | 12 March 1962 |
| Docket Number | No. 2,No. 48942,48942,2 |
| Citation | 354 S.W.2d 883 |
| Parties | STATE of Missouri, Respondent, v. Earl Lewis KIDDOO, Jr., Appellant |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., Thomas R. Green, Special Asst. Atty. Gen., Jefferson City, for respondent.
BARRETT, Commissioner.
The appellant, Earl Lewis Kiddoo, Jr., has been found guilty of attempted burglary.
Since an information charging this particular offense has not been previously considered, the substance of this one is set forth. The information alleges that on September 8, 1960, in Jackson County, Kiddoo, 'did unlawfully, feloniously and burglariously attempt (to) break into and enter a certain building, to-wit: the storeroom of R. D. Mann Carpet Company, a corporation, located at 924-6 Wyandotte, * * * by breaking and bursting the South window of said building there situate, the same being a building in which divers goods, wares, merchandise, and valuable things were then and there kept for sale and deposited, with felonious intent the said goods, wares, merchandise and valuable things in the said building then and there being then and there unlawfully, feloniously and burglariously to steal, and did then and there fail in the perpetration of said offense; * * *.' There is in effect or directly an allegation of an attempt, the overt acts constituting the attempt, the intent and a failure, prevention or interception in perpetration, and, after verdict and in the absence of an appropriate specific attack, the information appropriately charges the substantive offense of an attempt to commit burglary in the second drgree. V.A.M.S. Secs. 556.150, 556.070; 12 C.J.S. Burglary Sec. 43, p. 708; People v. Urbana, 18 Ill.2d 81, 163 N.E.2d 511; Place v. State, (Okl.Cr.) 300 P.2d 666.
It is not necessary to set forth the evidence, for the purposes of this opinion it is sufficient to say that the evidence supports the charge. State v. Pigques, (Mo.) 310 S.W.2d 942; State v. Whitaker, (Mo.) 275 S.W.2d 322.
The original information charging the substantive offense was filed on September 30, 1960. On November 22, 1960, the state filed an amended information in which, under the habitual criminal law (Sections 556.280, 556.290 RSMo 1959, V.A.M.S.), it was alleged that in 1956 Kiddoo had been convicted of a felony in Ohio. The allegation was that he had been 'convicted of a felony, to-wit: Defrauding an Innkeeper and was sentenced therefor to serve a term of from 1 to 5 years at the Ohio State Penitentiary.' Since the prior felony conviction was charged, the court did not give the jury a form of verdict permitting it to fix the punishment, and the jury, accordingly, returned a general verdict finding Kiddoo 'guilty of Attempted Burglary, Second Degree.' After the verdict was returned the court informed the jury that the defendant was being tried under the habitual criminal law and for that reason the jury was not given an opportunity to assess the punishment, that 'the obligation to do that is placed on the Court.' Thereupon, the court proceeded to find the prior conviction in Ohio, by having the defendant admit it, and fixed his punishment at four years' imprisonment 'for said offense of Attempted Burglary Second Degree under the Habitual Criminal Act.'
These matters, reflected by the 'information * * * verdict, judgment and sentence,' appear 'upon the record before (the court)' and must be considered even though they were not set forth in a motion for a new trial or otherwise called to the trial court's attention. Sup.Ct. Rule 28.02, V.A.M.R. The appellant is not represented by counsel in this court and there has been no brief filed on his behalf. Aside from this, however, and aside from the court's duty, the appellant has himself filed a document in which he asserts Wherefore, 'the writer prays the Court will consider defendants awkward position and concern and will duly consider the point contended * * * when the case is reviewed by the Court.'
When the state relies on a conviction in another state, the applicable section of the habitual criminal act provides that 'Every person who shall have been convicted in any of the United States * * * of an offense which, if committed in this state, would be punishable by the laws of this state by imprisonment in the penitentiary' (Section 556.290 RSMo 1959, V.A.M.S.), is punishable as a habitual criminal under section 556.280. And the latter section, incidentally, provides that 'If any person convicted of any offense...
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Bosler v. Swenson, 17596.
...572 (Mo.Sup. 1963); State v. Walker, 365 S.W.2d 597 (Mo.Sup. 1963); State v. Stegall, 353 S.W.2d 656 (Mo. Sup. 1962); State v. Kiddoo, 354 S.W. 2d 883 (Mo.Sup. 1962); State v. Fenner, 358 S.W.2d 867 (Mo.Sup. 1962); State v. Stuver, 360 S.W.2d 89 (Mo.Sup. 1962); State v. Summers, 362 S.W.2d ......
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Scott v. United States
...not so defined under the law of the forum state, is not a prior felony" for enhancement-of-sentence purposes. See, e. g., State v. Kiddoo, 354 S.W.2d 883 (Mo. 1962); State v. Knight, 75 N.M. 197, 402 P.2d 380 (1965). It would follow, appellant argues, that because he merely struck the milit......
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State v. Watson
...without remedy. These questions are reviewed on appeal under Rule 28.02, V.A.M.R. State v. Hurtt, Mo.Sup., 338 S.W.2d 876; State v. Kiddoo, Mo.Sup., 354 S.W.2d 883. Of course, in a case where the Habitual Criminal Act is not invoked, and the jury assesses the punishment (as in the Rizor cas......
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State v. McDaris
...in short there is no evidence whatever of the specific offense of an attempt to commit burglary in the second degree. State v. Kiddoo, Mo., 354 S.W.2d 883; State v. Whitaker, Mo., 275 S.W.2d 322. In view of the statutes relating to lower degrees of offenses (RSMo 1959, § 556.220, V.A.M.S.) ......