State v. Thomas
| Decision Date | 10 September 1962 |
| Docket Number | No. 48806,No. 2,48806,2 |
| Parties | STATE of Missouri, Respondent, v. Glendel W. THOMAS, Appellant |
| Court | Missouri Supreme Court |
William B. Spaun, Hannibal, for appellant.
Thomas F. Eagleton, Atty. Gen., James W. Steele, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
Defendant was charged by information, supposedly in two counts, with second degree burglary and stealing. Further reference will be made to the information later. The jury found defendant guilty of both burglary and stealing and fixed his punishment at imprisonment for two years on each charge. After an unsuccessful motion for a new trial, defendant appealed. It will not be necessary to relate the facts in any great detail, since no point is made in defendant's brief on the sufficiency of the evidence. The case was tried in Marion County on change of venue from Ralls County.
Defendant and two companions were arrested in Hannibal in defendant's 1955 Ford panel truck at 2:15 a. m. on August 29, 1960. They were taken to jail and defendant was booked as a burglary suspect He then had $79.27 in his possession which, by his testimony, he accounted for. He testified that the title to the vehicle was carried in his wife's maiden name, because of certain complications which are immaterial here. The evidence showed that one of defendant's companions had a record of several arrests in Hannibal. The truck was parked by the police on the street about 12 feet south of the main front door of the police station and in a well lighted area, but in a position where it was not constantly observed by the one officer on duty inside at night. It was not locked and could not be locked. It was not searched at the time.
At approximately 7:30 a. m. on the same morning it was discovered that both the office building and warehouse (a quonset hut type metal building) of the Ralls County Electric Co-Operative just south of New London had been broken into. The lock on the back door of the office building had been forced open by prying with some type of flat instrument, leaving distinct marks on the door facing, and a window glass in the warehouse had been broken so that the window might be unlocked and opened. These were separate buildings, about 50 feet apart. In the office the combination had been beaten from the vault door, and that door had been opened; a hole had been partially beaten or dug through a plaster and block wall of the vault. Papers in the vault were strewn on the floor and approximately $60 in money was missing. From the warehouse several tools were missing, including a one-quarter inch Thor electric drill, a pipe wrench, a sledge hammer and a tire tool. The drill was valued at $10.
A State Patrolman who investigated the burglary testified that he found three 'paths' beaten down through a bean field back of the Co-Op premises and leading to a gravel road; also, that at the road he found a place where a car had entered the field through beans and high weeds and had turned around. There was also evidence that various weeds were found on or under the bumpers and fenders and on the underside of defendant's truck, and that there were greenish stains, like weed stains, on defendant's socks. Defendant admittedly gave written permission for the search of the truck and the Chief of Police and State Trooper searched it at about 10:00 a. m. the same morning. They found in it, and marked, an electric drill (one-quarter inch Thor), a sledge hammer, an iron bar (apparently a car axle), a tire tool, a screw driver, a cold chisel, a two-cell rubber flashlight and three pairs of assorted gloves. All of these items were offered and received in evidence. The drill so produced was positively identified as the one taken from the warehouse; the sledge was said to be 'similar' to the one which was missing. There was gray paint on the end of the iron bar and at points on the head of the sledge which, upon laboratory examination, was said to be 'similar' to the gray paint in the office and on the vault.
The defendant testified that the tools found in the truck were his (except the electric drill), and that he had used the iron bar and sledge in tearing down a building and parts of another in Illinois shortly before August 29, 1960; also, that these buildings were painted a gray color, similar to the paint found on these tools. He further testified that he owned an electric drill of a different make, longer and more shiny, and that it was in the truck when he was arrested, but that the one produced at the trial was not his. He denied even being in the vicinity of the crime, and testified to the supposed purpose or purposes in driving to Quincy, thence to Canton and to Hannibal on the night and early morning in question; the latter testimony, convincing or otherwise, is immaterial here.
Defendant's first point here is that the information is defective. It sought, in two counts (although only the second was described as a count) to charge defendant (1) with stealing, and (2) with burglary, presumably in the second degree under Section 560.070, RSMo 1959, V.A.M.S. 1 Counsel has furnished us with rather slight explanation of his attack on the information, but we would consider it independently under Rule 28.02, V.A.M.R. We have determined that the first count states the essentials of a charge of stealing over $50 under Secs. 560.156 and 560.161, independent of the burglary charge. It alleges that defendant did, with 'criminal intent, wilfully, * * * unlawfully * * * feloniously, * * * steal and appropriate by exercising dominion over property in a manner inconsistent with the rights of the owner by taking, obtaining, transferring and retaining possession of property belonging to the Ralls County Electric Cooperative having the following values: Cash money $60.00, 1/2"' Electric Thor Drill, $10.00.' Such property was certainly within the definition stated in Sec. 560.156(1), and the stealing of that property subjected the defendant to imprisonment in the penitentiary as for a felony under Sec. 560.161(2).
We find the count alleging burglary to be insufficient. It is, in its entirety, as follows: 'COUNT 2. did then and there, with specific criminal intent, wilfully, intentionally, unlawfully, deliberately, feloniously, and on purpose break and enter into two separate buildings owned by and used for storage and office space by the Ralls County Electric Cooperative with intent to steal therefrom, contrary to the form of statute in such cases made and provided, and against the peace and dignity of the State of Missouri.' Even giving to the State the benefit of certain formal allegations appearing at the beginning of the first count, it is immediately apparent that the second count omits entirely the requirement of Sec. 560.070 that there must be the breaking and entering of a building, etc. (not being such as is declared to be first degree burglary, Sec. 560.040), 'in which there shall be at the time any human being or any goods, wares, merchandise or other valuable thing kept or deposited, with the intent to steal * * *.' Sections 560.045-560.065 deal with second degree burglary of a dwelling house, with which we are not concerned here. It was not claimed here that 'any human being' was in either of the buildings in question at the time of the breaking; it was essential therefore to allege as to any such building, either in so many words or in substance, that 'goods, wares, merchandise or other valuable thing' were 'kept or deposited therein.' State v. Moten, 276 Mo. 354, 207 S.W. 768. The information in that case was considerably better than ours, for it was alleged that defendant stole certain described property 'in the said store, shop and building then and there found'; still, the information was held fatally defective. We do not need to go that far here. There is no allegation here in either count that the $60 or the electric drill, or any other goods, wares, merchandise or property was kept or deposited in either of the buildings in question, or even that the stealing was from either of the buildings. We are dealing with a statutory crime and, while we are always loath to reverse upon points which may appear to be technical or nonsubstantive, we are duty bound to do so where a charge omits an essential element of the statutory definition of a crime. The omission here was of an element which, in effect, fixed the type of building which might be so burglarized; and we may not extend the scope of the statute. Respondent says that we may look to the first count (essentially such but not so numbered...
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