State v. Orr, 9235

• Decision Date: 23 March 1973
• Docket Number: No. 9235,9235
• Parties: STATE of Missouri, Respondent, v. Charles D. ORR, Appellant.
• Court: Missouri Court of Appeals

Page 374

493 S.W.2d 374

STATE of Missouri, Respondent, v. Charles D. ORR, Appellant.

No. 9235.

Missouri Court of Appeals, Springfield District.

March 23, 1973.

Motion for Rehearing or to Transfer to the Supreme Court

Denied April 9, 1973.

Application to Transfer Denied May 14, 1973.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Shaw & Howlett, Clayton, for appellant.

TITUS, Chief Judge.

A New Madrid County jury found defendant guilty of burglary in the second degree (§ 560.070, RSMo 1969, V.A.M.S.) and assessed his punishment at 10 years. § 560.095(2) RSMo 1969. After defendant's motion for a new trial was denied, the trial court executed the requirements of Rule 27.09, V.A.M.R., rendered judgment and pronounced sentence compatible with the verdict. Defendant appealed.

Richard Drerup, d/b/a Trader Dick, operated an emporium in Portageville. Near 11 p.m., April 28, 1971, he was asleep at home when a burglar 'alarm went off in my bedroom.' The alarm was designed to sound atop the store, at the city hall and in the proprietor's home whenever an entry was made into that portion of the store containing firearms and ammunition. Drerup hied himself to the establishment where he was met by two Portageville police officers. The trio discovered the front door was locked and that the garage-type 'back door was pulled down but there was a little panel busted out of (it) right where they could flip (a) switch to unlock the door.' While one of the officers remained at the back door, Drerup and the other policeman conducted a fruitless search of the premises before calling upon the highway patrol for assistance. Three members of the patrol arrived and, following a further search, defendant and one Harris were found hiding behind rolls of linoleum that were standing on end and leaning against a wall. Harris was possessed of a pair of gloves and a bumper-jack handle; defendant was wearing jersey gloves and, according to Corporal Enderle, was holding a gun in 'his hand . . . down beside him.'

I.

Defendant's initial point relied on complains that Instruction No. 2 did not 'contain an adequate general converse' in that it concluded with the words 'and unless you find the facts to be you will acquit the defendant of burglary in the second degree,' rather than with the wording 'propounded by the Missouri Bar Draft or Pattern Criminal Instructions' which are 'more accurate and understandable.' The point is not reviewable. Rule 84.04(e), made applicable to criminal cases by Rule 28.18 (State v. Warren, 469 S.W.2d 662, 663 (Mo.App.1971)), requires that when a point relates to the giving of an instruction, 'such instruction shall be set forth in full in the argument portion of the brief.' Instruction No. 2 does not appear in any portion of the defendant's brief. In addition, the point is penned without citation of authority and the argument portion of the brief, consisting of a simple paragraph, contains the admission that 'there is no case law stating that a general converse in the form (as contained in Instruction No. 2) is prejudicial error, and indeed the cases have approved such a general converse.' When a point appears without citation of authority and little or no argument, it has not been preserved for appellate review. State v. Warters, 457 S.W.2d 808, 811(2) (Mo.1970). Nevertheless, if we were to consider the point on its merits, it would suffice to say that a converse instruction is not a part of the law of the case on which the court must charge whether requested or not. If a defendant wants a more precise converse than the admittedly approved and time honored one contained in Instruction No. 2, he must formulate and offer a proper one. State v. Smith, 485 S.W.2d 461, 468 (Mo.App.1972). As defendant did not proffer such an instruction, we cannot now hear his complaint.

II.

The second 'point' made by defendant is that the court erred 'when it failed to give certain instructions required as part of the law of the case, even though not requested. The court should have given an instruction on circumstantial evidence because of the circumstantial nature of the plaintiff's evidence.' Defendant is wrong on several scores. In the first place, and assuming this was a purely circumstantial case, which it is not, the effect of or the weight to be given by the jury to circumstantial evidence is a collateral issue. State v. Michael, 361 S.W.2d 664, 665 (Mo.1962). Even if the State's case reposed wholly upon circumstantial evidence, the giving of a circumstantial evidence intruction would be mandatory only if a proper request for same had been made by the defendant, and no such request was made in this cause. State v. Spica, 389 S.W.2d 35, 52--53(26) (Mo.1965), cert. denied, 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312. But although the State's evidence may have consisted substantially of circumstantial evidence or was largely circumstantial, it is not mandatory to give an offered instruction on circumstantial evidence where there is also some direct evidence of defendant's guilt. State v. Mace, 429 S.W.2d 734, 738(2) (Mo.1968), cert. denied, 393 U.S. 1122, 89 S.Ct. 1003, 22 L.Ed.2d 128; State v. Slay, 406 S.W.2d 575, 579(3) (Mo.1966). As applicable to the factual situation here, the elements of the offense of burglary in the second degree are a breaking and entering of a building in which any goods, wares, merchandise, or other valuable thing are kept or deposited, with the intent to steal or commit any crime therein. The evidence of the breaking in order to effect an entrance into Trader Dick's building was circumstantial, but the evidence anent the discovery of defendant hiding in the store and thus being found upon the premises was direct evidence of the fact of an entry. Under these circumstances no instruction on circumstantial evidence was necessary, particularly in view of the fact no request for such an instruction had been made. State v. Butler, 353 S.W.2d 698, 699 and...