State v. Peck

• Decision Date: 07 January 1977
• Docket Number: No. 10356,10356
• Citation: 545 S.W.2d 725
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Rex E. PECK, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 725

545 S.W.2d 725

STATE of Missouri, Plaintiff-Respondent, v. Rex E. PECK, Defendant-Appellant.

No. 10356.

Missouri Court of Appeals, Springfield District.

Jan. 7, 1977.

Loren R. Honecker, Springfield, for defendant-appellant.

John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before BILLINGS, C.J., and HOGAN and FLANIGAN, JJ.

FLANIGAN, Judge.

Appellant Rex E. Peck, tried as a second offender, was found guilty of burglary in the second degree (§ 560.070 V.A.M.S.) and was sentenced to imprisonment for eight years.

Appellant's first point is that the information under which he was tried is insufficient to support the conviction 'in that it fails to allege ownership of the allegedly burglarized premises.'

The information, after pleading the prior convictions, alleged, as applicable here: '. . . that Rex Eugene Peck on or about the 5th day of June, 1974, in the County of Greene and State of Missouri, did . . . break into and enter a building used and occupied by Grant Hardware, located at 2301 College, Springfield, Missouri, . . . without the consent of the owner. . . .'

Rule 24.01 V.A.M.R., at the time of the proceedings below, provided, in pertinent part: '. . . (T)he information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. . . . It need not contain . . . any other matter not necessary to such statement.'

Appellant argues that the information 'identifies the burglarized premises and sets out the name of the business conducted therein, but fails to allege ownership of either the business or the premises in any individual, partnership or corporation.'

Under Missouri law an information for burglary must 'set out the ownership of the burglarized premises,' although this requirement is satisfied by an allegation of occupancy or possession. State v. Rist, 456 S.W.2d 13, 15(1) (Mo.1970). It is not necessary to allege the legal status of the owner or occupant, that is, whether it is a corporation, partnership or individual. State v. Ford, 403 S.W.2d 611, 612(1) (Mo.1966).

There are two reasons for the requirement that the identity of the owner or occupant of the place burglarized be contained in the information: (1) to show that the building alleged to have been burglarized was not the building of defendant; and, (2) to identify the offense so as to protect the defendant from a second prosecution for the same offense. Rist, supra, at p. 15.

For support of his position appellant relies principally upon three cases: State v. Schultz, 295 S.W. 535 (Mo.1927); State v. Simpson, 317 Mo. 398, 295 S.W. 739 (1927); and State v. Ford, 403 S.W.2d 611 (Mo.1966). In those cases, each involving the offense of burglary, the indictment or information was held to be fatally defective. In Ford the court said that the information 'wholly fails to contain any allegation concerning the ownership of the building,' and the court also said 'the allegation here is precisely the same as that in' Schultz and Simpson.

A comparison of the information in the case at bar with its counterparts in Schultz, Simpson and Ford, discloses that it is more educative than are they. In Schultz the germane language of the indictment was 'did . . . break . . . and enter a certain building, to wit, a store building known as House's hardware and dry goods store, located at 4817 Prospect avenue, Kansas City, Missouri . . ..' In Simpson the language was 'did . . . break . . . and enter a certain building, to wit, a building located at 217 West Ninth Street, in Kansas City, Jackson county, Mo., and known as the Savoy Pharmacy . . ..' In Ford the language was 'did break and enter into the Crossroads Cafe, a building or enclosure in which are kept goods.'

Food contains an instructive list of burglary informations, some held to be sufficient and others insufficient with respect to the feature involved here.

In the following cases, each of which involved the offense of burglary, the indictment or information was held to be sufficient with respect to the allegation concerning ownership of the burglarized premises: State v. Eaton, 394 S.W.2d 402 (Mo.1965); Stanfield v. State, 442 S.W.2d 521 (Mo.1969); State v. Rist, 456 S.W.2d 13 (Mo.1970).

In Eaton the pertinent language was 'did . . . (b)reak and enter into the Stratton Produce Company building . . ..' The information also designated the county in which the building was located. In Stanfield the language was 'did . . . break and enter a certain store, shop or building, located on Highway 71 South, Harrisonville, Missouri, the property of Nyman's Food Center . . ..' In Rist the language was 'did . . . break . . . and enter . . . a building housing P. N. Hirsch & Co. . . . located in the Eastgate Shopping Center in Trenton, Grundy County, Missouri . . ..'

Eaton, which was decided prior to Ford, made no mention of Schultz or Simpson. It did, however, list certain 'older cases' and said, at p. 404: 'These older cases do hold that an indictment or information is insufficient if there is a failure to allege the ownership, or to specify the status of the owner (e.g., individual, corporation or partnership) therein, as being matters which the defendant is entitled to know. The rule in those cases, however, has been specifically overruled by this court in later cases on the point here raised.'

The language 'the Stratton Produce Company building . . .' is no more informative than the language 'a building used ¹ and occupied ² by Grant Hardware, located at 2301 College, Springfield, Missouri.'

Stanfield distinguished Ford by saying that the information in Ford 'contained identity of the burglarized building but omitted entirely any allegation of ownership.' (Emphasis added)

Stanfield involved an information which gave the address of the building, as does the instant information, and then referred to it as 'the property of Nyman's Food Center.' The opinion does not disclose the legal status of 'Nyman's Food Center,' that is, 'whether corporation, partnership or individual,' and it pointed out that legal status need not be pleaded in the information, citing State v. Zammar, 305 S.W.2d 441, 442(1) (Mo.1957).

Surely the language 'a building used and occupied by Grant Hardware' is as informative as the language 'the property of Nyman's Food Center.' It could not reasonably be maintained that an information using the term 'Grant's Hardware' would be sufficient, on the authority of Stanfield, but that an information using the term 'Grant Hardware' would fall short of sufficiency.

The supreme court ponted out in Rist, at p. 15, that Schultz, Simpson and Ford 'involved allegations which merely identified the building, but did not adequately...