State v. Shepard
| Decision Date | 10 March 1969 |
| Docket Number | No. 53844,53844 |
| Citation | 442 S.W.2d 58 |
| Parties | STATE of Missouri, Respondent, v. Glen R. SHEPARD, Appellant. |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Edward L. Downs, Special Asst. Atty. Gen., Cape Girardeau, for respondent.
J. Arnot Hill, Kansas City, The Legal Aid and Defendant Society of Greater Kansas City, for appellant.
STOCKARD, Commissioner.
Defendant, Glen R. Shepard, was found guilty by a jury of attempted burglary, second degree, and sentenced to imprisonment for a term of four years and six months. He has appealed from the ensuing judgment.
The amended information upon which defendant was tried charged that on April 5, 1967, he attempted to break into and enter a service station belonging to Buel D. Burton by tearing a hole in the roof, the building being one in which goods, wares and merchandise were kept and deposited, with intent to steal.
The jury reasonably could find from the evidence that in the early morning of April 5, 1967, defendant and a companion were apprehended while on the roof of the building described in the information, and that a hole about 20 by 24 inches in size, which was not there when Mr. Burton closed the station about 11:00 o'clock of the previous night, had been cut through that part of the roof over a storeroom wherein cigarettes and other goods were stored.
The only contention on this appeal is that the trial court erred in giving Instruction 2, which in its parts material to the issue was as follows:
'The court instructs the jury that if you believe and find from the evidence * * * that * * * the defendant * * * did * * * unlawfully, feloniously and burglariously attempt to break into and enter (the building described in the amended information) * * * by then and there forcibly tearing a hole in the roof of said storeroom, there situate, with intent then and there to commit some felony, or any stealing therein, but that the defendant failed in the perpetration therein * * * then you will find the defendant guilty of Attempted Burglary, Second Degree, and so find in your verdict.' (Emphasis added).
Defendant contends that he was not charged in the information with an attempt to commit burglary with the intent to commit 'some felony,' but only with the intent to steal; that there was no evidence from which an attempt to commit a crime other than to steal could be inferred; and that for the above reasons the instruction was broader than the information and the proof.
Burglary, second degree, is defined in Section 560.070, RSMo 1959, V.A.M.S., and an element of that offense is an intent 'to steal or commit any crime therein.' State v. Vandergriff, Mo., 403 S.W.2d 579, 581. An intent to commit 'some felony' is an intent to commit a 'crime,' but is more restrictive than the statutory provision. As used in the instruction, the phrase 'commit some felony' clearly refers to a felony other than stealing in connection with the burglary because the two expressions are stated in the disjunctive. In most cases an intent necessarily must be inferred from the circumstances, and the evidence in this case authorized a finding that defendant attempted to break and enter the service station with an intent to steal therein. State v. Whitaker Mo., 275 S.W.2d 316. However, a finding of an intent to commit 'some felony' other than stealing would be based solely on speculation and conjecture.
The offense of burglary, second degree, insofar as the essential element of intent is concerned, may be committed in two ways; that is, by an intent to steal or by an intent to commit any other crime in the building broken and entered. It has long been the rule that when a crime may be committed by any of several methods, the information must charge one or more of the methods, and the method or methods submitted in the verdict directing instruction must be among those alleged in the information, and when submitted in the disjunctive each must be supported by evidence. State v. Robinett, Mo., 279 S.W. 696; State v. Scott, Mo., 230 S.W.2d 764. As stated in State v. Regazzi, Mo., 379 S.W.2d 575, 579, 'The jury should be limited to a finding of specific facts, supported by the evidence in the case, upon which its verdict could be based.' In this case, the submission clearly authorized a finding of guilty if the jury found an intent to commit 'some felony' other than stealing or an intent to...
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...are means or elements.The Supreme Court of Missouri has identified State v. Lusk , 452 S.W.2d 219, 223 (Mo. 1970), and State v. Shepard , 442 S.W.2d 58, 60 (Mo. 1969), as decisions enforcing a rule against a variance between a charge and a jury instruction that deprives a criminal defendant......
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...and the method or methods submitted in the verdict directing instruction must be among those alleged in the information. State v. Shepard, 442 S.W.2d 58, 60 (Mo. banc 1969); Church, 636 S.W.2d at Here, instruction 5 submitted that defendant committed the offense charged in Count I by one of......