State v. McDaris
| Decision Date | 13 February 1967 |
| Docket Number | No. 2,No. 51754,51754,2 |
| Citation | 411 S.W.2d 126 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Jerry Wayne McDARIS, Defendant-Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, James A. Pudlowski, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Arch M. Skelton, skelton & Bonacker, Springfield, for appellant.
BARRETT, Commissioner.
Jerry McDaris, Larry Miller and Tommy Slagle were jointly charged with burglary in the second degree, RSMo 1959, § 560.070, V.A.M.S. Specifically and in the language of the statute the information charged that on April 3, 1965, the three of them did 'unlawfully, willfully, feloniously and burglariously break into and enter, by forcing open the north outside door of said building, the store of the M.F.A. Co-operative Association of Fair Play, Missouri, a corporation in Fair Play, Missouri, the same being a building in which divers money, goods, wares, merchandise and other valuable things were then and there kept for sale and deposited * * *.' Upon a severance the appellant was separately tried but instead of submitting his guilt or innocence of the completed offense of burglary the state's principal instruction submitted that he did, against the will of the owner 'attempt to break and enter into the M.F.A. Co-operative Association of Fair Play, Missouri, a corporation, by then and there attempting to pry open the north outside door of said building * * * and if you further find that the defendant did any overt act toward the commission of buglary and that he failed in the perpetration of said offense or was prevented or intercepted in executing the same, then the jury will find the defendant guilty of an attempt to commit the offense of burglary' and assess his punishment for the attempt rather than for burglary. (Emphasis supplied.) Compare RSMo 1959, § 560.095 and § 556.150, V.A.M.S. The jury returned a verdict finding the appellant 'guilty as charged in the information' and fixed his punishment at three years' imprisonment. Among other grounds in his motion for a new trial and here the appellant has two detailed assignments of error directed to Instruction 5 and his conviction of an attempt when the state's theory of the case and all the proof was that if the appellant was guilty at all he was guilty of the completed offense of burglary in the second degree. The basis of his assignment is § 556.160, RSMo 1959, V.A.M.S.: 'No person shall be convicted of an assault with an intent to commit a crime, or of any attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt.' In response the state relies solely upon §§ 556.220 and 556.230, RSMo 1959, V.A.M.S., which permit the finding of guilt 'of any degree of such offense inferior to that charged * * * or of an attempt to commit such offense, or any degree thereof' or the latter which permits a finding of guilt of 'a less offense * * * the commission of which is necessarily included in that charged against him.'
Briefly and only insofar as they may bear on the precise problem these were the incontrovertible facts established by the state, the defendant offered no evidence. At closing time on Saturday, April 3, 1965, the manager of the Fair Play M.F.A. locked all the doors and as he did intermittently tested the burglar alarm. Between 2 and 3 o'clock in the morning he was informed that the building had been broken into. When he met a deputy sheriff there the first thing he discovered was that the burglar alarm had been 'tripped' and was run down and the west or middle door 'was cracked' but not open enough for a man to go through. But when he went to the back door, an overhead door, it had been forced open and was off the track. The sheriff said, 'The door had been pushed open, and out of the channel.' The manager said that there were 'fresh' pry marks 'on the outside edge of the door.' Two feed carts that had been upright in the evening were found overturned. An assistant manager found one glove and a tire tool just inside the door on a feed bag and these articles did not belong to anyone connected with the exchange. Miller, separated from McDaris and Slagle and having reported that two soldiers had kicked him out of his automobile and stolen it, described his keys to the sheriff: 'He said that they were on a chain, and there would be two keys, a class ring and a nail clipper on them.' A deputy sheriff found these keys 'Right on the inside of the door that was busted open, or pried open.' When Miller and Slagle, driving appellant's automobile, were stopped by deputy sheriffs from Greene County the ignition had been wired around and Miller jerked the jump wire loose and threw it on the ground. The wire was preserved and it was a piece of the wire to the light on the license bracket from an M.F.A. truck parked in the building. Thus in these detailed circumstances unlike in State v. Pigques, Mo., 310 S.W.2d 942, there was an 'entry' into the M.F.A. building and beyond question a completed burglary within the meaning of the statute (RSMo 1959, § 560.070, V.A.M.S.) and as charged in the information. State v. Smith, Mo., 357 S.W.2d 120. Here there was no interception or prevention (RSMo 1959, § 556.150, V.A.M.S.), 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.) and necessarily included offenses (RSMo 1959, § 556.230, V.A.M.S.), it has been argued on more than one occasion that § 556.160 (in force since 1855) serves no useful purpose but each time the court has said that...
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State v. King
...§ 556.230 RSMo (1969) (see present § 556.046) permitting convictions of "lesser and included" offenses. See, e. g., State v. McDaris, 411 S.W.2d 126, 128 (Mo.1967); State v. Baker, 276 S.W.2d 131, 134 (Mo.1955). However, the courts found no reason to nullify or ignore § 556.160 RSMo (1969),......
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State v. Purvis, KCD
...Pigques, 310 S.W.2d 942, 945(1) (Mo.1958), burglary; State v. Grant, 394 S.W.2d 285, 289--290(10) (Mo.1965), rape; State v. McDaris, 411 S.W.2d 126, 127--128(1) (Mo.1967), rape; and many other The defendant seeks to avoid the application of this statutory and decisional principle by referen......
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State v. Charles, KCD
...robbery was not error. See: State v. Murray, supra; and State v. Thomas, supra. Judgment affirmed. All concur. 1 In State v. McDaris, 411 S.W.2d 126 (Mo.1967), the charge was burglary in the second degree, and there was proof of a consummated offense. The trial court instructed the jury on ......
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State v. Johnson, WD
...A defendant is not entitled to an instruction on an attempt where the proof shows the offense was consummated. State v. McDaris, 411 S.W.2d 126, 128 (Mo.1967). Johnson's second point is The third point Johnson raises deals with challenges to veniremen who Johnson claims should have been exc......