State v. Singleton, WD
| Citation | 602 S.W.2d 3 |
| Decision Date | 09 June 1980 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. Edward E. SINGLETON, Appellant. 31043. |
| Court | Court of Appeal of Missouri (US) |
J. Martin Anderson, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Jefferson City, Darrell Panethiere, Asst. Atty. Gen., Kansas City, for respondent.
Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.
This is a direct appeal from a jury conviction for burglary, first degree, and stealing. The jury imposed sentences of 15 years on the burglary offense and 7 years on the stealing offense. The sentences are to run concurrently. The judgment is affirmed.
The owner of the burglarized residence was on vacation from December, 1978 to March, 1979. When he returned, he discovered that his front door had been battered, his gun cabinet torn up and several items of personal property missing. The items of property consisted of a camera, jewelry and guns and were taken into possession by law enforcement officers the night of appellant's arrest. These items were later identified by the owner upon trial.
The owner testified that the guns in question were kept unloaded. He further testified that he never, at anytime, authorized appellant's entry to his home. He did not even know appellant.
The evidence in this case not only outlines the commission of the offense for which appellant stands convicted, but illustrates a cooperative, practical and interdependent neighbor relationship which proved effective against criminal conduct in one local neighborhood. The owner and a neighbor had an arrangement that each would watch the property of the other in the absence of either. Since the owner was on vacation, this neighbor was keeping a continued watch over his neighbor's home.
On January 8, 1979, the neighbor was preparing for bed about 10:30 p. m. He observed two men alight from an automobile at the street corner. One man was described as short and heavy, wearing a blue coat, while the other was described as tall with a beard and wearing an army-type jacket. This neighbor witnessed these two men approach the owner's home and open the front screen door. At this point, the neighbor called the police and proceeded thereafter outside with his dog and his rifle. The weather outside was bitter cold and snow was about boot top in depth upon the ground. The neighbor further observed the taller of the two men, who was carrying a blanket covering some guns and other items, leave the rear door of the owner's home. The neighbor followed a set of footprints in the snow to the breezeway of his own home, where under some bushes his dog located the taller man, who was hiding. This taller man was arrested at this location by police who had arrived at the scene.
The owner's granddaughter testified she had been in her grandfather's house, with a key and upon his request, on January 7, 1979 and that her daughter had been in the house at approximately 4:00 p. m. the day of the burglary (January 8, 1979), and the house was undisturbed on those occasions. On January 8, 1979, at approximately 11:10 p. m., she was called to her grandfather's home where she observed the front door jam broken, the door knob broken off, the bedroom ransacked and the gun cabinet opened.
Two police officers testified. Both officers testified that they were dispatched to the scene upon a report of prowlers. The first officer testified that upon his arrival, he checked the front door, and finding that it was open, proceeded to the rear of the house where he discovered the basement door open as well. This officer then followed some footprints in the snow, noting that they split into two definite sets of footprints. He followed one set to the west, where he found the neighbor and the taller man. He arrested the taller man. This officer further testified that he observed a white sheet approximately 30 feet from the point where the footprints in the snow split into two sets. He also observed, some 50 feet prior to the split in the footprints, a bedspread wrapped around the guns taken from the owner's house.
The second officer testified that upon arrival at the scene, he stationed himself on the street to the rear of the owner's home to possibly observe any escape. He observed distinguishable footprints in the snow leading from the burglarized home to a point on the west side of another house where he found appellant lying on the ground. This officer testified that appellant, when arrested at this point, was wearing a navy or black coat.
The testimony of these two officers established that there was some difficulty in unloading one of the guns later at the police station. In addition, a third person was arrested later the same night while driving appellant's automobile. One of the officers testified that earlier in the evening (prior to the burglary) he had, while on patrol in the neighborhood, observed this third person in front of the burglarized home.
At the close of the state's evidence, appellant moved twice for a directed verdict, alleging that there had been no proof of appellant's guilt beyond a reasonable doubt. These motions were overruled. Appellant offered no evidence. Instructions were submitted to the jury. The jury returned its verdict and assessed appellant's punishment. Timely motion for new trial was filed, overruled, and this appeal followed.
Appellant alleges two points of error. First, he alleges the trial court erred in denying his claim for directed verdict because there was no proof he entered the residence armed with a deadly weapon as charged in the information. Second, he alleges the trial court erred in the submission of Instruction no. 6 because he was charged with entering the residence armed with a deadly weapon, and the instruction, contrary to both the information and law, charged him with being armed with a deadly weapon on flight from the residence. The alleged errors attack only Count I of the information related to the burglary offense.
Appellant was, by information, charged with the offense of burglary, first degree, a Class B felony under § 569.160, RSMo 1978. Since the errors on this appeal are interrelated with the information, the evidence, the statute and a specific instruction, the pertinent statutory language, the applicable wording within the information and the specific instruction are set out as follows: 1
1) "1. A person commits the crime of burglary in the first degree if he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein, and when in effecting entry or while in the building or inhabitable structure or in immediate flight therefrom, he or another participant in the crime:
(1) Is armed with explosives or a deadly weapon; . . ."
Section 569.160, RSMo 1978 (emphasis added)
2) Information:
". . . the defendant, Edward E. Singleton, in violation of Section 569.160, R.S.Mo., committed the class B felony of Burglary in the First Degree, punishable upon conviction under Sections 558.011.1(2), RSMo . . . the defendant, knowingly entered unlawfully in a residence located at 5901 East 83rd Street, Kansas City, Missouri, and owned by Keithel Harris for the purpose of committing the crime of stealing therein, and the defendant was armed with a deadly weapon."
"As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about January 8, 1979, in the County of Jackson, State of Missouri, the defendant knowingly entered unlawfully in a (sic) inhabitable structure located at 5901 East 83rd Street, Kansas City, Missouri and owned by Keithel Harris, and
Second, that defendant did so for the purpose of committing the crime of stealing therein, and Third, that while in immediate flight from the inhabitable structure, the defendant was armed with a deadly weapon, then you will find the defendant guilty under Count I of burglary in the first degree.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
Stealing. A person commits the crime of stealing if he appropriates property or services of another with the purpose of depriving him thereof, either without his consent or by means of deceit or coercion.
If you find the defendant guilty under Count I of burglary in the first...
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