State v. Williams
| Decision Date | 12 June 1967 |
| Docket Number | No. 2,No. 52131,52131,2 |
| Citation | 416 S.W.2d 71 |
| Parties | STATE of Missouri, Respondent, v. Wendell WILLIAMS, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Raymond Peltzman, Special Asst. Atty. Gen., Kansas City, for respondent.
J. Whitfield Moody, J. Arnot Hill, The Legal Aid & Defender Society, Kansas City, for defendant-appellant.
STOCKARD, Commissioner.
Defendant was found guilty by a jury of burglary in the second degree and he has appealed from the ensuing judgment.
A jury reasonably could find from the evidence that on April 9, 1965, defendant broke open the desk in the office of the S. Patti Construction Company at 1340 Admiral Street, Kansas City, Missouri, and took therefrom a pad of printed company checks. However, he weas charged with burglary, second degree, and not with stealing, and an essential element of the offense charged is that there was a 'breaking and entering' of the building by defendant. § 560.070 RSMo 1959, V.A.M.S.; State v. Whitaker, Mo., 275 S.W.2d 316; State v. Ewing, mo., 298 S.W.2d 439. Mr. Patti, general manager of the S. Patti Construction Company, testified that on April 9, 1965, he was on the premises of the company at 1340 Admiral Boulevard and left them about five o'clock in the evening, and that at that time by building 'was in good shape.' He did not testify that all the windows and doors of the building were closed or locked, and he did not testify that the 'window in the basement area' was closed or locked, or that when he left at five o'clock that it had not been forced and entered. He did state that he had not 'given permission' for anyone to 'break' into the building. He also said that he did not know 'who it was if anybody,' who broke into the building. After Mr. Patti testified that the windows in the office were closed and had not been damaged, the following occurred:
'Mr. Kirwin: (defense counsel) Of course, we object to any statement as being hearsay.
'The Court: Sustained.'
Mr. Patti then testified that he had not ascertained 'whether or not any other part' of the building had been broken into.
Defendant had no reason to object to the question pertaining to the 'rest of your building.' Also, at the time the answer to that question was made he had no reason to object to it because it did not in any way indicate that the witness was not testifying from personal knowledge. However, the next three questions and answers clearly revealed that the witness was not testifying from personal knowledge, but that his answer that the window in the basement area had been forced and entered was based solely on hearsay. Defendant then objected 'to any statement as being hearsay,' and the court sustained the objection. Admittedly, in view of the fact that the objectionable answer had been made, good trial practice called for a motion to strike out the answer with a more complete statement of the reason therefor than was made. State v. Battles, 357 Mo. 1223, 212 S.W.2d 753; State v. Tyler, Mo., 306 S.W.2d 452. However, it cannot be said that the trial court was not reasonably well informed to what defendant objected and the reason therefor. Generally an objection, as that term is used, is directed to a question, and a motion to strike is directed to an answer, but both are objections; one to the question, the other to the answer. It would be technical beyond justification to say that an 'objection' to an answer on the ground that it was hearsay was not in fact a request to have the answer excluded from the consideration of the jury.
In Waddell v. Metropolitan St. Ry., 113 Mo.App. 680, 88 S.W. 765, an improper and unresponsive answer was given to a question, and an objection, without a motion to strike, was made to the answer. The court point out that the 'usual practice in calling the attention of the court to unresponsive and improper statements contained in the answer of the witnesses is by motion to strike out such matter', and improper statements of witnesses must be pointed out to the court and objected to or the right to complain is waived. But, the court continued, We think this is and should be the correct rule. There should be no particular magic in the use of certain words. The question is whether there was a timely and sufficient communication to the trial court that a complaint was being made to the answer with a sufficient statement of the reason for the complaint. Compare State v. Penn, Mo., 413 S.W.2d...
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...given. State v. Smith, 90 S.W.3d 132, 139 (Mo.App.2002); State v. Evenson, 35 S.W.3d 486, 491–92 (Mo.App.2000); see also State v. Williams, 416 S.W.2d 71, 73 (Mo.1967). In these circumstances, the opposing attorney must object to the answer as soon as possible. Id. In this case, the grounds......
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State v. Gardner
...area which constitutes plain error affecting substantial rights within the meaning of Rule 27.20(c), V.A.M.R. (State v. Williams, 416 S.W.2d 71, 74(6) (Mo.1967))--we have, ex gratia, resorted to the argument part of the brief to come by defendant's meaning of the point. We find that rather ......
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State v. Newland, KCD
...the crime of Second Degree Burglary, and the case was submitted to the jury under an instruction requiring such finding. State v. Williams, 416 S.W.2d 71, 72 (Mo.1967); State v. Allen, 344 Mo. 335, 126 S.W.2d 236(1) (1939); State v. Sallee, 436 S.W.2d 246, 251(5) The opening of an unlocked ......
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State v. Hustead, 42736
...for burglary in the second degree there must be evidence of a forcible breaking and entering into a building. 3 State v. Williams, 416 S.W.2d 71, 72 (Mo.1967); State v. Ewing, 298 S.W.2d 439, 443 (Mo.1957); State v. Sloan, 548 S.W.2d 633, 637 (Mo.App.1977). The force to constitute a breakin......