State v. Lee
Decision Date | 04 December 1972 |
Citation | 488 S.W.2d 272 |
Parties | STATE of Missouri, Respondent, v. Billy Wayne LEE, Appellant. KCD 26113. |
Court | Missouri Court of Appeals |
Paul T. Miller, Exec. Director, Willard B. Bunch, Chief Exec. Director, Henri J. Watson, The Legal Aid & Defender Society of Greater K.C., of counsel, Kansas City, for appellant.
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.
Before SHANGLER, C.J., PRITCHARD and WASSERSTROM, JJ., and J. DONALD MURPHY, Special Judge.
From a conviction of burglary in the second degree and burglarious stealing under § 560.110 V.A.M.S., with resulting consecutive sentences of three years on the burglary and two years on the stealing, the defendant appeals. He attacks the sufficiency of the information and also the admissibility of certain evidence. Since we sustain the attack on the information, it is unnecessary to consider the evidentiary points. Those are no longer live issues and any discussion thereof 'would amount to nothing more than obiter dictum'. State v. Cunningham, Mo., 380 S.W.2d 401, l.c. 402; quoting from State v. Harris, Mo., 313 S.W.2d 664, l.c. 671; State v. Cantrell, Mo., 403 S.W.2d 647, 651.
The basis for defendant's attack upon the information is that it does not allege who owns the burglarized premises. The leading case on the subject in Missouri is State v. Ford, Mo., 403 S.W.2d 611, l.c. 612, in which the Missouri Rule was summarized as follows:
The State argues 'that it is a mere surplusage to require that an information charging burglary allege the ownership of the building when the building is otherwise sufficiently described to accurately identify it', and cites a number of cases from other jurisdictions so holding. However, even the State's brief acknowledges that 'a majority of the states still appear to require that an allegation of ownership of the building is necessary, and the Missouri Supreme Court has adopted the majority view'. No matter how appealing the minority view might be if this were a matter of first impression, the adoption of the majority rule by the Supreme Court is binding upon this Court.
As a second line of defense, the State argues that even though the information does not directly allege the ownership of the burglarized premises, nevertheless, such is inferable. That argument is premised upon the allegation in the information that certain personal property stolen from the premises were 'the goods and property of Conrad A. Smith, Jr., in said building then and there being found'. This quoted language cannot be said to allege that the building itself was owned by Conrad A. Smith, Jr. While the Missouri Supreme Court has been rather liberal in construing informations as sufficiently charging ownership, the allegations here cannot come within the scope of even the liberal approach accorded in State v. Rist, Mo., 456 S.W.2d 13; State v. Bell, Mo., 442 S.W.2d 535; and Stanfield v. State, Mo., 442 S.W.2d 521.
Nor is it logical to proceed from the fact that certain personal property taken from the building belonged to Conrad A. Smith, Jr., to an inference that the building was owned by, or even in the possession of that individual. It is perfectly possible that the building was owned by someone else who was holding the property of Smith as a bailee. In any event, an indictment or information must state all necessary elements of the offense directly, and cannot leave these matters to mere inference. State v. Cantrell, Mo., 403 S.W.2d 647; State v. Harris, Mo., 313 S.W.2d 664; State v. Hook, Mo.App., 433 S.W.2d 41; State v. Barlett, Mo.App., 394 S.W.2d 434. As stated in the Barlett case, which language was quoted by this Court in the Hook case:
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