State v. Peterson

• Decision Date: 14 October 1957
• Docket Number: No. 2,No. 46017,46017,2
• Citation: 305 S.W.2d 695
• Parties: STATE of Missouri, Respondent, v. Gerald PETERSON, Appellant
• Court: Missouri Supreme Court

Page 695

305 S.W.2d 695

STATE of Missouri, Respondent, v. Gerald PETERSON, Appellant.

No. 46017.

Supreme Court of Missouri, Division No. 2.

Oct. 14, 1957.

No attorney, for appellant.

John M. Dalton, Atty. Gen., John C. Baumann, Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

A jury has found the appellant, Gerald Peterson, guilty of second degree burglary. The jury also found that he had been previously convicted, sentenced and discharged of an offense punishable by imprisonment in the penitentiary and, therefore, fixed his punishment at ten years' imprisonment.

The information charged that in 1954 he was 'duly convicted of Larceny of an Automobile and in accordance with said conviction, was sentenced to three (3) years in the Missouri State Penitentiary and on the 23rd day of January, 1954, was duly imprisoned therein in accordance with the aforesaid sentence, and on December 17, 1955, was duly discharged under commutation of sentence by Governor Donnelly.' As to the present offense it is charged that on February 24, 1956, 'Gerald Peterson did then and there feloniously and burglariously break into and enter a certain building used by Rollie Pettijohn, d/b/a Pettijohn Service Station, in which divers goods, wares and merchandise were kept and deposited * * *.'

In his brief, the appellant 'by Best Friend,' first urges that the information does not properly allege or charge his prior conviction, sentence and discharge within the meaning of the second offense statute. V.A.M.S. Sec. 556.280. The particular complaint is of the phrase, 'discharged under commutation of sentence by Governor Donnelly,' which he says, in effect, does not show, in the language of the statute, that he was 'discharged, either upon pardon or upon compliance with the sentence.' This and similar objections have often been made to informations charging prior offenses but it has become firmly established that such allegations meet the requirements of the statute. State v. Asher, Mo., 246 S.W. 911; State v. Pitts, Mo., 282 S.W.2d 561. And likewise of his complaints that the exhibits concerning his prior trial, conviction and discharge were not properly authenticated, did not identify the appellant, and were, therefore, not admissible in evidence. These records consisted of a certified copy of a judgment of conviction of larceny of an automobile in Buchanan County in January 1954, and a 'Certified Transcript Of Serial Record,' certified to by the Deputy Warden of the Missouri State Penitentiary. V.A.M.S. Sec. 216.395. The Chief of Detectives of the St. Joseph Police Department, who had known the appellant for seven or eight years, identified the appellant as the person named in all of the documents. In these circumstances the documents were properly authenticated, he was identified, and they were, of course, admissible in evidence. State v. Dalton, Mo., 23 S.W.2d 1. These exhibits and this record are in nowise comparable to those in State v. St. Clair, Mo., 261 S.W.2d 75. In addition, upon cross-examination the appellant readily admitted the prior conviction and the service of his sentence (State v. Reed, Mo., 298 S.W.2d 426; State v. Scott, Mo., 299 S.W.2d 526) and there was no error in the court's instructing the jury upon the subject of second offense and the instruction was not an improper or unwarranted comment on the evidence (V.A.M.S. Sec. 546.380) and did not infringe the jury's prerogative of trying and finding all issues of fact. V.A.M.S. Sec. 546.040. State v. Dalton, supra; State v. Hands, Mo., 260 S.W.2d 14. Also in this connection the appellant, citing the statute with reference to the prosecution of burglary and larceny in one count (V.A.M.S. Sec. 560.110), contends that the court erroneously instructed the jury as to the punishment to be inflicted but, the jury having found the second offense, the infliction of the ten-year penalty was mandatory. V.A.M.S. Secs. 560.070, 560.095, 556.280.

Second, the appellant urges that the information is fatally defective as an attempt to charge burglary in the second degree (V.A.M.S. Sec. 560.070) in that it wholly fails to allege the ownership of the premises charged to have been burglarized. To show that the premises did not belong to the accused and to protect him from a second prosecution for the same offense (State v. Carey, 318 Mo. 813, 820, 1 S.W.2d 143, 146), the charge of ownership of the burglarized premises is a necessary and essential element in Missouri. Annotation 169 A.L.R. 887. As indicated, the allegation here is that 'Gerald Peterson did then and there feloniously and burglariously break into and enter a certain building used by Rollie Pettijohn, d/b/a Pettijohn Service Station, in which divers goods, wares and merchandise were kept and deposited * * *.' In State v. Schultz, Mo., 295 S.W. 535, 536, the allegation of 'a store building known as House's hardware and dry goods store, located at 4817 Prospect avenue, Kansas City,' was not an allegation of ownership of the building alleged to have been burglarized and, therefore, the indictment was fatally defective. And in State v. Simpson, 317 Mo. 398, 295 S.W. 739, the allegation of 'a building located at 217 West Ninth street, in Kansas City, Jackson county, Mo., and known as the Savoy Pharmacy, a more accurate description of which is to the said grand jurors unknown' was held to constitute a failure to allege ownership. However, it is often that the state in its proof or the facts of the offense are not concerned with the legal title to the building and in those instances it is sufficient to allege the occupancy or possession of the premises at the time they were burglarized. And so, in State v. Jeffords, Mo., 64 S.W.2d 241, 242, the allegation was 'said store building being used as a store, and operated by Mr. and Mrs. John Sappington.' We are not concerned here with a variance in proof of the fact (State v. Carey, supra) or with the right to amend the information in this respect (State v. Wright, 339 Mo. 41, 95 S.W.2d 1159); Mr. Pettijohn testified that his business was that of a service station operator and that he 'operated' the burglarized service station. The appellant was well acquainted with the service station, Mr. Pettijohn and his 'use' and 'operation' of the service station--he was a customer and had a charge account with Mr. Pettijohn on the date he is alleged to have burglarized the premises. In this information the description 'a certain building used by Rollie Pettijohn, d/b/a Pettijohn Service Station' is a good and sufficient charge of ownership of the building or premises. State v. Jeffords, supra; State v. Carey, supra.

The appellant has briefed several matters which were not set forth in either his motion for a new trial or in his socalled amended motion (State v. Townzell, Mo., 286 S.W.2d 785), and many of his assignments in both his motion and brief are so lacking in detail and particularity as to not be reviewable. V.A.M.S. Sec. 547.030; Supreme Court Rule 27.20, 42 V.A.M.S. For example, the objections that the court erred in admitting incompetent, irrelevant and immaterial evidence offered by the state, that the court erred in giving each and every instruction as against the burden of proof and the weight of the evidence or against the credible evidence, that the verdict was the result of passion and prejudice have repeatedly been held to be so lacking in particularity as to not be reviewable. State v. Reed, supra; State v. Burks, Mo., 257 S.W.2d 919; State v. Fields, Mo., 293 S.W.2d 952. And, of course, it was not prejudicially erroneous for the court to give the 'guilty' instructions and forms of verdict before setting forth or giving the 'not guilty' instructions and verdict form. State v. Lord, Mo., 286 S.W.2d 737. However, all these and several other objections are concerned with the substantive objection and argument that the evidence was insufficient to establish his guilt. And his contention in this respect stems from the inexcusably bizarre fact that the two crucial witnesses, two deputy sheriffs--one a man with seven years' experience and the other a 'rookie'--testified to an almost completely contradictory set of facts and one of them testified for the state and the other for the appellant.

The deputies were on night patrol duty and had checked the...