State v. Mallory

• Decision Date: 13 June 1960
• Docket Number: No. 47790,No. 2,47790,2
• Citation: 336 S.W.2d 383
• Parties: STATE of Missouri, Respondent, v. Gilbert MALLORY, Appellant
• Court: Missouri Supreme Court

Page 383

336 S.W.2d 383

STATE of Missouri, Respondent, v. Gilbert MALLORY, Appellant.

No. 47790.

Supreme Court of Missouri, Division No. 2.

June 13, 1960.

John Rasse, Edward R. Scott, Marshall, for appellant.

John M. Dalton, Atty. Gen., Jerry B. Buxton, Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

Gilbert Mallory has been found guilty of burglary and larceny, the jury also found prior felony convictions and fixed his punishment at fifteen years' imprisonment, ten years for the burglary and five years for the larceny.

Upon the trial of his case the appellant was represented by court-appointed counsel but upon this appeal he is without counsel and it is the duty of this court to 'render judgment upon the record before them.' V.A.M.S. Sec. 547.270. However, it was the duty of the appellant and his counsel upon the trial of the cause to set forth in his motion for a new trial 'in detail and with particularity * * * the specific grounds or causes therefor' (V.A.M.S. Sec. 547.030; Supreme Court Rule 27.20, V.A.M.R.), and failing in this regard, as the motion does in several instances, this court may not review those assignments of error. State v. Ronimous, Mo., 319 S.W.2d 565. The state claims that this rule applies to and prevents our review of the appellant's assignment with respect to the information and claim that the evidence is insufficient to support a conviction, particularly of burglary. It has been said and there may be some instances in which it is necessary to set forth in detail and with particularity objections to an information (State v. Green, Mo., 305 S.W.2d 863; State v. Daegele, Mo., 302 S.W.2d 20), but an information has always been a part of the record proper or 'upon the record before them' (V.A.M.S. Sec. 547.270; State v. Willard, 228 Mo. 328, 128 S.W. 749), and generally is for consideration in this court regardless of the sufficiency of the motion for a new trial. State v. Biven, Mo., 151 S.W.2d 1114, 1116. And the assignment that 'the Court erred in denying Defendant's motion for a directed verdict of acquittal at the close of all the evidence' is the equivalent of a claim that 'there was no substantial evidence to support the verdict' and presents for this court's review the sufficiency of the evidence to sustain the conviction. State v. Daegele, Mo., 302 S.W.2d loc. cit. 23; State v. Henderson, 356 Mo. 1072, 1076, 204 S.W.2d 774, 777; State v. Tharp, 334 Mo. 46, 51-52, 64 S.W.2d 249, 253.

By a motion to quash and in the motion for a new trial the objection to the amended information is that it failed to allege that the burglarized building was 'owned, occupied or in possession of 'Ritter Hardware Company, Inc., a Corporation.'' The information charged that the defendant feloniously and burglariously broke into and entered 'a certain building, to-wit, the store known as Ritter Hardware, belonging to Ritter Hardware Company, Inc., a corporation, located in Higginsville, Lafayette County, Missouri, by forcibly raising a locked and closed door of said building * * *.' In connection with an information an 'amendment' is a change or correction (State v. Varner, Mo., 329 S.W.2d 623, 626) and is permissible as long as no additional or different offense is charged and there is no prejudice to the defendant by reason of the amendment. V.A.M.S. Sec. 545.290; Supreme Court Rules 24.02, 24.11. Here the proof showed beyond doubt the ownership of the building, it is not claimed or indicated how the appellant was prejudiced, the information was otherwise sufficient and it was not necessary to the validity of the information to allege 'the legal status of the alleged owner of the burglarized structure (as being a corporation, a partnership or an individual).' State v. Zammar, Mo., 305 S.W.2d 441, 442; State v. Hedgpeth, 311 Mo. 452, 278 S.W. 740; State v. Lundry, 361 Mo. 156, 233 S.W.2d 734.

These briefly were the facts and circumstances in which the appellant was charged and convicted: About three o'clock on the morning of March 19, 1959, Mr. Ritter was called by a Higginsville night watchman to investigate a possible 'breakin' of the 'Ritter Hardware, Incorporated.' Upon closing the store on the evening of March 18 Mr. Ritter checked and locked all doors and windows, particularly the overhead basement door. When he again investigated at three o'clock in the morning the overhead door was 'slightly ajar' and unlocked and the pickup truck was missing from its place in the basement. Further investigation revealed that shotguns, rifles, and a pistol were missing from the gun rack and several electric motors and drills were also missing. Mr. Ritter subsequently identified all of these articles and their value was $917.50 and the truck was found on the outskirts of Higginsville. About 1:40 in the morning a 'rookie' Kansas City policeman saw a 1948 Chevrolet coach automobile with a Nevada license run a stop light at 18th and Charlotte Streets and, after calling for another patrolman, 'put the red light and siren on' his police car and stopped the Chevrolet. The Chevrolet belonged to the appellant Mallory and he was driving it and in the seat beside him was Eddie Gurley. The patrolman informed Mallory that he was under arrest for 'running a red light' and asked to see his driver's license. As the patrolman looked at the California driver's license he also looked through the rear window of the Chevrolet and saw several rifles and guns partially covered with blankets and clothes. The rear end of the Chevrolet sagged and the two officers asked him to unlock the trunk. He first said 'I haven't got any key' but finally 'reached down and opened it up, and in the trunk of the car was this merchandise, with electric motors and drills, some of them in boxes, some of them weren't in boxes.' In these circumstances there was no unreasonable search and seizure and upon their subsequent identification by Mr. Ritter and the police they were of course admissible in evidence. State v. Hawkins, 362 Mo. 152, 159, 240 S.W.2d 688, 692; State v. Reagan, Mo., 328 S.W.2d 26, 28-29; State v. Campbell, Mo., 262 S.W.2d 5, 9. This evidence and other circumstances to be detailed support the conviction of grand larceny or 'stealing' (State v. Nichols, Mo., 130 S.W.2d 485; State v. Gale, Mo., 322 S.W.2d 852, 855) and the...