State v. Parker, 36556

• Decision Date: 10 August 1976
• Docket Number: No. 36556,36556
• Citation: 543 S.W.2d 236
• Parties: STATE of Missouri, Respondent, v. Emmett PARKER, Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 236

543 S.W.2d 236

STATE of Missouri, Respondent, v. Emmett PARKER, Appellant.

No. 36556.

Missouri Court of Appeals, St. Louis District, Division Four.

Aug. 10, 1976.

Motion for Rehearing and for Transfer to Supreme Court

Denied Sept. 30, 1976.

Application to Transfer Denied Dec. 13, 1976.

Shaw & Howlett, C. Clifford Schwartz, Clayton, for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., James S. Haines Jr., Jefferson City, for respondent.

ALDEN A. STOCKARD, Special Judge.

Emmett Parker was charged as a second offender with setting fire to and burning a building with the intent to injure and defraud the insurance company which had insured the contents thereof.

Appellant first challenges the sufficiency of the information because it did not set forth 'the manner and means by which (he) was to have committed the offense.' He asserts that this 'created an unfair and prejudicial burden upon (him) in meeting the uncertainty of the charge.' No cases are cited.

The information charged that appellant on a stated day 'unlawfully, wilfully, maliciously and feloniously (did) set fire to and burn a certain building of (naming owner) situated at 5716 Dr. Martin L. King Drive * * * with the felonious intent then and there to injure and defraud (naming the insurance company), the insurer of said building which contents-occupied as record stocks of said building was then and there insured unto the said (appellant) against loss and damage by fire in the sum of four theousand dollars * * *.'

Section 560.030 RSMo 1969 provides in its material parts as follows:

'Any person who shall willfully and with the intent to injure or defraud the insurer set fire to, burn or cause to be burned any goods, wares, merchandise or other chattels or personal property of any kind which shall at the time be insured by (the) person * * * against loss or damage by fire shall be guilty of a felony * * *.'

In Hodges v. State, 462 S.W.2d 786, 789 (Mo.1971) the Supreme Court of this State, in considering the sufficiency of an information charging robbery, stated: 'Certain rules have been enunciated for testing the sufficiency of an information, among which are: It must state essential facts constituting the offense charged. State v. Cunningham, Mo., 380 S.W.2d 401, 403(4); it must adequately notify a defendant of the charge against him and constitute a bar to further prosecution for the same offense, State v. Tandy, Mo., 401 S.W.2d 409, 412--413(3); and if the information does these things following the language of the statute or words of similar import, poor draftmanship, if existent, will never render it fatally defective, State v. Harris, Mo., 313 S.W.2d 664, 669(3).'

Although poorly drafted, the information in this case followed the language of the applicable statute and set forth all the essential elements of the offense.

Appellant's contention that the information, as worded, placed a prejudicial burden on him to meet the 'uncertainty of the charge' implies a reference to Mo. Const. Art. I, § 18(a) wherein it is provided that an accused has the right 'to demand the nature and cause of the accusation.' However, that provision does not require that the State plead the evidence with which it intends to prove the commission of the offense. State v. Spica, 389 S.W.2d 35, 40 (Mo.1965). The statute applicable to this case makes it an offense to burn insured goods with the intent to defraud the insurer. The charge that appellant did burn the described goods with that intent is the 'nature and cause of the accusation.' The act of burning may be accomplished in various ways or means, and proof of the particular way or means employed constitutes evidence of the commission of the offense. A comparable situation may be found in State v. McKinney, 528 S.W.2d 1 (Mo.App.1975). It was there held that it was not necessary to set forth in an information charging first degree robbery by means of a dangerous and deadly weapon a definition or description of the weapon employed, but that the information need only allege the language of the statute.

This does not mean that appellant was not entitled to be informed of what the State intended to claim constituted the 'manner and means' of committing the charged offense if necessary to prepare a defense. Rule 24.03 provides: 'When an indictment or information alleges the essential facts constituting the offense charged but fails to inform the defendant of the particulars of the offense sufficiently to prepare his defense, the court may direct or permit the filing of a bill of particulars.' Appellant did not request a bill of particullars, and his failure to do so constituted a waiver of the lack of any detail in the information. State v. Davis, 510 S.W.2d 790 (Mo.App.1974).

Appellant's second point, in its entirety is as follows: 'The Court committed prejudicial error in overruling defendant's motion to suppress and exclude confessions of fact and statements against interest.' This point fails to comply with Rule 84.04(d) in that it fails to set forth wherein and why the action of the court is claimed to be erroneous. In the argument pertaining to the point, appellant contends the he was 'neither advised of his rights (presumably 'Miranda rights') nor was he informed that the purpose of Officer Ginther's conversation with him was for the Officer's formal report.' No authorities are cited in the argument.

Apparently appellant had reference to a statement made by him to Police Officer Ginther at the time of the fire. Officer Ginther testified at the hearing on the motion to suppress that he arrived at the scene of the fire at about 3:30 o'clock in the morning, and that in making his investigation he talked to appellant. In answer to the question as to what appellant said, Officer Ginther stated:

'He identified himself as Mr. Parker and stated he was the owner of the real estate and he stated he had left and secured the premises about 10:30 p.m. and had driven to Kiel Auditorium to pick up his wife, Gloria. He further stated that while at Kiel Auditorium picking up his wife, a lady known to him as Francine stated she had parked her car in front of the 5700 Martin Luther King address and requested to be driven back to that location which he did; and, on arriving, he found the fire apparatus there.'

Aside from its inadequacy, the point is without merit for several reasons. First, we find nothing in the statement attributed to appellant that constituted a confession or a statement against interest. Second, the questioning of appellant by Officer Ginther was made in the course of his on-the-scene investigation, and it did not constitute in-custody interrogation. As stated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), 'General on-the-scene questioning as to facts surrounding (the) crime or other general questioning of citizens in the fact-finding process is not affected by our holding.' It has repeatedly been held that responses to precustodial inquiries are not inadmissible because of a failure to give Miranda warnings. State v. Duncan, 495 S.W.2d 460, 462 (Mo.App.1973); State v. Ralls, 472 S.W.2d 642, 647 (Mo.App.1971). Third, no objection whatever was made when Officer Ginther testified at the trial that appellant made to him the statement referred to above.

We will consider appellant's third and fourth points together. They are that the trial court erred in denying his motion for judgment of acquittal (Point III) 'at the close of the State's evidence because the finding and judgment of the court is against the weight of credible evidence,' and (Point IV) 'at the close of all the evidence because the evidence presented and the hypothesis relied upon by the State in establishing the guilt of the defendant were not consistent with each other.'

We first note as to Point III that appellant did not stand upon his motion for acquittal at the close of the State's case, but introduced evidence of his own. Therefore, he waived any error with respect to the denial of that motion. State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970). In addition, the weight of the evidence is not a matter reviewable by an appellate court, State v. Thomas, 530 S.W.2d 265 (Mo.App.1976), but is an issue for the trial court in ruling on the motion for new trial. State v. Talbert, 454 S.W.2d 1 (Mo.1970). It is reasonably apparent, however, that appellant contends by these two points that the State did not make a submissible case based in part on circumstantial evidence, and we shall so consider the points.

Appellant was the owner of the Dynamic Record Shop located at 5716 Dr. Martin Luther King Drive in the City of St. Louis. The premises were rented from Albert Eisenberg, and on April 28, 1973, the fixtures and inventory in the record shop were covered by a fire insurance policy issued by the Missouri Property Insurance Placement Facility. Appellant operated the record shop with Gloria Ford, his 'common-law' wife. In the nine months they had owned the record shop, it had not been a profitable operation. The shop had only one door and appellant and Gloria were the only persons who had a key, and on the night of the fire each had his or her key. At about 7:00 o'clock, or possibly a little earlier, on the evening of April 28, 1973, appellant took Gloria and two other persons to a show at Keil Auditorium. During the evening appellant's son was in charge of the record shop, and many young persons including appellant's other children, were present. Some smoked cigarettes and lit matches while in the shop, and one lit matches and 'flipped' or 'popped' them at others who were present, but no fire was started. Appellant later returned to the record shop, and after he 'ran everybody out' he closed the shop about 10:30 o'clock and locked the door. According to appellant, he then drove to Keil Auditorium to pick up Gloria and her companions, and when he returned to the record shop, where one...