State v. Lee

Decision Date04 December 1972
Citation488 S.W.2d 272
PartiesSTATE of Missouri, Respondent, v. Billy Wayne LEE, Appellant. KCD 26113.
CourtMissouri 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.

WASSERSTROM, 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:

'An examination of the cases will disclose that Missouri has always followed the majority rule which requires that 'an indictment or information for burglary, whether at common law or under a statute, must allege the ownership of the building or dwelling entered.' Annotation, 169 A.L.R. 887. State v. Wright, 339 Mo. 41, 95 S.W.2d 1159; State v. Peterson, Mo.Sup., 305 S.W.2d 695. However, the strict rule originally followed has been modified in two respects. It is no longer required that the legal status of the alleged owner be averred, i.e., whether a corporation, partnership, or individual. State v. Zammar, Mo.Sup., 305 S.W.2d 441(1). And it is usually not necessary to allege who owns the legal title to the building, but it is sufficient to allege the occupancy or possession of the premises at the time they were burglarized. State v. Peterson, Supra; State v. Jeffords, Mo.Sup., 64 S.W.2d 241.'

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:

'Nothing which is material to the charge will be taken by intendment. In criminal cases all presumptions go in favor of innocence. The accused cannot be presumed to know and be apprised of that which is not clearly set forth. It devolves upon the pleader to set forth facts which bring the accused within the terms of the statute. (citing cases) Thus it is that neither the court nor the defendant is...

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5 cases
  • State v. Barnes
    • United States
    • Missouri Court of Appeals
    • May 10, 1974
    ...determination. State v. Cunningham, 380 S.W.2d 401, 402(2) (Mo.1964); State v. Harris, 313 S.W.2d 664, 671(9) (Mo.1958); State v. Lee, 488 S.W.2d 272 (Mo.App.1972). An Information charging the obtaining of property by false pretenses should allege in clear, simple, and positive language all......
  • City of Kansas City v. Harbin, KCD
    • United States
    • Missouri Court of Appeals
    • May 5, 1980
    ...City v. Redwine, 376 S.W.2d 609, 613 (Mo.App.1964). Nothing which is material to the charge will be taken by intendment. State v. Lee, 488 S.W.2d 272, 273 (Mo.App.1972). Turning to the facts in the instant case, this information fails the stated tests because it fails to allege that the off......
  • State v. Neal, 36124
    • United States
    • Missouri Court of Appeals
    • August 5, 1975
    ...of the jury.' There is no question that the accused in a criminal proceeding is presumed innocent until proven guilty. State v. Lee, 488 S.W.2d 272, 273(4) (Mo.App.1972). Defendant's guilt is a matter to be proved, beyond a reasonable doubt, and the opinion of an individual as to defendant'......
  • State v. Gibson
    • United States
    • Missouri Court of Appeals
    • September 8, 1976
    ...or take such other action as the state deems advisable. State v. Cunningham, 380 S.W.2d 401, 403(10) (Mo.1964); State v. Lee, 488 S.W.2d 272, 274 (Mo.App.1972) and authorities there For the reasons stated the judgments of the trial court are reversed, and the cause is remanded. All concur e......
  • Request a trial to view additional results
1 books & journal articles
  • Section 23.3 General Considerations
    • United States
    • The Missouri Bar Criminal Practice Deskbook Chapter 23 Evidence
    • Invalid date
    ...in criminal prosecutions favor the accused, and no presumptions can establish guilt or a fact essential to a conviction. State v. Lee, 488 S.W.2d 272, 273 (Mo. App. W.D. 1972). Certain presumptions, however, act against the accused, e.g., the presumptions of sanity, of knowledge of the law,......

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