State v. Zammar

• Decision Date: 09 September 1957
• Docket Number: No. 45753,No. 2,45753,2
• Citation: 305 S.W.2d 441
• Parties: STATE of Missouri, Respondent, v. Mitchell ZAMMAR, Appellant
• Court: Missouri Supreme Court

Page 441

305 S.W.2d 441

STATE of Missouri, Respondent, v. Mitchell ZAMMAR, Appellant.

No. 45753.

Supreme Court of Missouri, Division No. 2.

Sept. 9, 1957.

Motion for Rehearing of to Transfer to Court En Banc Denied

Oct. 14, 1957.

Blackford, Imes, Compton & Brown, Kansas City, for appellant.

John M. Dalton, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.

LEEDY, Judge.

Mitchell Zammar (hereinafter referred to as defendant) was convicted of burglary in the second degree and 'larceny committed in conjunction with [said] burglary,' and sentenced to imprisonment in the penitentiary for a term of two years for each offense, or a total of four years, and he appeals. The live questions in the case are these: (1) Whether the indictment is good, and (2) whether the evidence in the case (all of which was introduced by the prosecution) is sufficient to support the verdict.

The indictment describes the premises alleged to have been burglarized as 'the A. and N. Hardware Store, the property of Lloyd Norris and Vivion Anderson, the same being a building in which divers goods, wares, merchandise * * * were then and there kept and deposited,' etc. Defendant's first contention is that the failure to allege 'whether the A. & N. Hardware Store was a corporation, or a partnership, or a trade name' renders the indictment insufficient, citing State v. Jones, 168 Mo. 398, 68 S.W. 566; State v. Jordan, Mo., 289 S.W. 540; State v. Evans (State v. Barri), Mo., 217 S.W. 30.

These cases, which undeniably support defendant's contention, represent former holdings on the question--a view long since abandoned. A directly opposite position has been taken, so that it is no longer required that the legal status of the alleged owner of the burglarized structure (as being a corporation, a partnership or an individual) be averred. State v. Carson, 323 Mo. 46, 18 S.W.2d 457; State v. Stewart, 329 Mo. 265, 44 S.W.2d 100; State v. Latham, 344 Mo. 74, 124 S.W.2d 1089; State v. Quinn, 345 Mo. 855, 136 S.W.2d 985; State v. Dowling, 360 Mo. 746, 230 S.W.2d 691; State v. Stubblefield, Mo., 248 S.W.2d 665. The latest pronouncement on the subject is the last-mentioned case, where the single question was as to the sufficiency of the burglary charge contained in an information for burglary and larceny, which portion omitted to aver the legal status of the alleged owner of the building, 'the W. L. Jones Motor Company.' In denying the contention made in the instant case, and upholding the validity of the charge, the court quoted approvingly from State v. Hedgpeth, 311 Mo. 452, 457, 278 S.W. 740, 741, as follows: 'Proof of the appellant's guilt of the crimes charged or either of them, did not depend upon establishing the fact of the oil company's incorporation, but upon the question as to whether the appellant feloniously broke into the premises of another, and, to establish the larceny, that he stole from such premises the property described in the charge. While the corporate existence of the oil company was alleged in the information, it was a mere matter of description to enable the owner to be more readily identified. Whether, therefore, the owner of the premises be a corporation, a partnership, or an individual is not material to the appellant's defense or in the establishment of his guilt.'

Defendant next complains that 'the bare charge of 'break and enter' in the indictment did not sufficiently enlighten the defendant as to the charge he had to meet,' in that he 'could not tell whether the window was broken, a latch lifted, or what was supposed to have happened.' The indictment, after averring the date and venue of the offense, charges that defendant 'did then and there willfully and feloniously and burglariously break and enter * * * [the structure hereinabove described] in which divers goods, wares, merchandise, other valuable things and personal property were then and there kept and deposited with the felonious intent the goods, wares, merchandise and other valuable things and personal property in the said building then and there being, then and there feloniously and burglariously to steal, take and carry away, and one H & R Model 48 20-gauge shotgun, one Winchester 218 BEE, Model 43, 29135A, one Stevens Model 15A, 22 Cal. rifle, one Winchester Model 12, 20-gauge shotgun, Serial 1395483, one Savage Model 24, Over and Under 22 and 410, one Stevens 20-gauge shotgun, Model 94C the personal property of Lloyd Norris and Vivion Anderson, then and there in said hardware store building being found, and then and there feloniously and burglariously [did] steal, take and carry away with the intent to deprive the rightful owners the use thereof and convert to his own use, against the peace and dignity of the State.' The indictment having charged the elements of the offense of burglary in the second degree under Sec. 560.070 (all statutory references are to RSMo 1949 and V.A.M.S. unless otherwise expressly noted), namely, breaking and entering, the character and situation of the building, and the intent, it was sufficient in that regard. It is only in first degree burglary that the method of gaining entry by forcibly bursting or breaking is important. State v. O'Brien, Mo., 249 S.W.2d 433.

The remaining objections to the sufficiency of the indictment go to the larceny or stealing aspect of the charge. In 1955 the Legislature, by Senate Bill 27, repealed 59 separate sections of the statutes relating to offenses against property, and enacted in lieu thereof five new sections (new known as Sec. 560.156 and Sec. 560.161) relating to the same subject, and thereby consolidated, combined or merged larceny, embezzlement, obtaining money or property by false pretenses and other kindred offenses into one crime, denominated 'stealing.' Paragraphs (1) and (2) of subsection 1 of Sec. 560.156 define the words 'property' and 'steal,' as used in the act, as follows:

'(1) 'Property', everything of value whether real or personal, tangible or intangible, in possession or in action, and shall include but not be limited to the evidence of a debt actually executed but not delivered or issued as a valid instrument and all things defined as property in sections 556.070, 556.080 and 556.090, RSMo 1949:

'(2) 'Steal', to appropriate by exercising dominion over property in a manner inconsistent with the rights of the owner, either by taking, obtaining, using, transferring, concealing or retaining possession of his property.'

Subsection 2 of Sec. 560.156 reads: 'It shall be unlawful for any person to intentionally steal the property of another either without his consentor by means of deceit.'

Two of the repealed sections were those the catchwords of which ascribe to said sections, respectively, definitions of 'grand larceny,' Sec. 560.155, and 'petit larceny,' Sec. 560.240. Referring to the former of these, it was said in State v. Jenkins, Mo., 213 S.W. 796, 797, that it [the section] 'does not attempt to define the essentials of the offense. It classifies, first, personal property according to valuation, and, second, by specific designation, the felonious taking of which shall constitute grand larceny. Except to denounce the felonious taking of the property designated as 'grand larceny,' the statute leaves the elements of the offense to be defined in a charge as at common law. This offense, as thus defined, is the wrongful and fraudulent taking and carrying away by any person of the personal property of another, from any place, with a felonious intent to convert it to the taker's own use, without the consent of the owner. 4 Bl.Com. 239; Hawkins, P.C. c. 33. A later definition which does not differ from the foregoing, except to be more comprehensive, is that it is the felonious taking by trespass, and the carrying away of the goods of another, without the latter's consent, with the felonious intent to deprive the owner of his property, and to convert it to the taker's use. 17 R.C.L. p. 5, and cases.' The section specifying the effect of a larceny when committed in the perpetration of a burglary was left unrepealed. This apparent oversight was corrected at the next session of the General Assembly by substituting the word 'stealing' for the word 'larceny' wherever the latter appeared in Sec. 560.110. Laws 1957, p. ___, Senate Bill 63, Sec. 1.

This court has not as yet been called upon to construe the new consolidated statute, nor to decide questions of pleading arising under it. The limited ones raised in the instant case do not call for a full scale inquiry into its scope, meaning and effect. Defendant says the indictment is bad under the new statute for two reasons: First, that it fails to allege in the language of subsection 2 of Sec. 560.156 that the alleged stealing (of another's property) was done 'either without his consent or by means of deceit;' and, second, that it fails to negative the defense provided for in subsection 3 of $560.156 to the effect that if the property stolen 'is a chattel and the person charged with stealing the same proves by a preponderance of the evidence that no further transfer was made, and that, at the time of the appropriation he intended merely to use the chattel and promptly to return or discontinue his use of it, he has a defense to a prosecution under subsection 2.'

Treating these objections in the inverse order of their statement, it is sufficient to say that the language of the statute last quoted is obviously not descriptive of the offense, but, on the contrary, goes to a matter of defense, and in this situation no negative averment is necessary. In State v. Brown, 306 Mo. 532, 535, 267 S.W. 864, 865, the following from Kelley's Criminal Law and Practice, 3d Ed. p. 149, Sec. 193, was quoted with approval: "But where the exception or proviso is found in a separate and distinct clause or part of the statute, disconnected from that which described the offense, no such negative averment is necessary in the indictment,...