State v. McDarisState v. McDaris
- Reporters:
- ,
- Before:
- Barrett
Jerry McDaris, Larry Miller and Tommy Slagle were jointly charged with burglary in the second degree, RSMo 1959, § 560.070, V.A.M.S. Specifically and in the language of the statute the information charged that on April 3, 1965, the three of them did “unlawfully, willfully, feloni-ously and burglariously break into and enter, by forcing open the north outside door of said building, the store of the M.F.A. Cooperative Association of Fair Play, Missouri, a corporation in Fair Play, Missouri, the same being a building in which divers money, goods, wares, merchandise and other valuable things were then and there kept for sale and deposited * * Upon a severance the appellant was separately tried but instead of submitting his guilt or innocence of the completed offense of burglary the state’s principal instruction submitted that he did, against the will of the owner “attempt to break and enter into the M.F.A. Co-operative Association of Fair Play, Missouri, a corporation, by then and there attempting to pry open the north outside door of said building * * * and if you further find that the defendant did any overt act toward the commission of buglary and that he failed in the perpetration of said offense or was prevented or intercepted in executing the same, then the jury will find the defendant guilty of an attempt to commit the offense of burglary” and assess his punishment for the attempt rather than for burglary. (Emphasis supplied.) Compare RSMo 1959, § 560.095 and § 556.150, V.A.M.S. The jury returned a verdict finding the appellant “guilty as charged in the information” and fixed his punishment at three years’ imprisonment. Among other grounds in his motion for a new trial and here the appellant has two detailed assignments of error directed to Instruction 5 and his conviction of an attempt when the state’s theory of the case and all the proof was that if the appellant was guilty at all he was guilty of the completed offense of burglary in the second degree. The basis of his assignment is
Briefly and only insofar as they may bear on the precise problem these were the incontrovertible facts established by the state, the defendant offered no evidence. At closing time on Saturday, April 3, 1965, the manager of the Fair Play M.F.A. locked all the doors and as he did intermittently tested the burglar alarm. Between 2 and 3 o’clock in the morning he was informed that the building had been broken into. When he met a deputy sheriff there the first thing he discovered was that the burglar alarm had been “tripped” and was run down and the west or middle door “was cracked” but not open enough for a man to go through. But when he went to the back door, an overhead door, it had been forced open and was off the track. The sheriff said, “The door had been pushed open, and out of the channel.” The manager said that there were “fresh” pry marks “on the outside edge of the door.” Two feed carts that had been upright in the evening were found overturned. An *128assistant manager found one glove and a tire tool just inside the door on a feed bag and these articles did not belong to anyone connected with the exchange. Miller, separated from McDaris and Slagle and having reported that two soldiers had kicked him out of his automobile and stolen it, described his keys to the sheriff: “He said that they were on a chain, and there would be two keys, a class ring and a nail clipper on them.” A deputy sheriff found these keys “Right on the inside of the door that was busted open, or pried open.” When Miller and Slagle, driving appellant’s automobile, were stopped by deputy sheriffs from Greene County the ignition had been wired around and Miller jerked the jump wire loose and threw it on the ground. The wire was preserved and it was a piece of the wire to the light on the license bracket from an M.F.A. truck parked in the building. Thus in these detailed circumstances unlike in State v. Pigques, Mo., 310 S.W.2d 942, there was an “entry” into the M.F.A. building and beyond question a completed burglary within the meaning of the statute (RSMo 1959, § 560.070, V.A.M.S.) and as charged in the information. State v. Smith, Mo., 357 S.W.2d 120. Here there was no interception or prevention (RSMo 1959, § 556.-150, V.A.M.S.), in short there is no evidence whatever of the specific offense of an attempt to commit burglary in the second degree. State v. Kiddoo, Mo., 354 S.W.2d 883; State v. Whitaker, Mo., 275 S.W.2d 322.
In view of the statutes relating to lower degrees of offenses (RSMo 1959, § 556.220, V.A.M.S.) and necessarily included offenses (RSMo 1959, § 556.230, V.A.M.S.), it has been argued on more than one occasion that
But when both the charge and proof are of a consummated offense, as a charge and proof of a consummated rape or carnal knowledge, for over one hundred years it has been held to be reversible error to submit and convict of an attempt to ravish. State v. White, 35 Mo. 500; State v. Baker, Mo., 276 S.W.2d 131; State v. Lacey, supra; State v. Bell, supra; State v. Scott, supra. Also in arson and sodomy, upon proof of completed offenses it has been held error to submit by instruction an attempt to commit either offense. State v. McCaffery, 225 Mo. 617, 125 S.W. 468; State v. Clark, 221 Mo. 391, 120 S.W. 21. In the latter case, except for the differences in the substantive offenses, the instruction hypothesizing “attempt” and “prevented or intercepted” is almost identical with Instruction S-5 complained of here. The enforced corollary of this rule is that upon proof of a consummated offense, as in murder or arson, the defendant is not entitled to an instruction on an attempt. State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42; State v. Bobbitt, 242 Mo. 273, 146 S.W. 799.
It so happens that this appeal and State v. Pigques are the only burglary cases *129that have been confronted with these three statutes. And in the Pigques case both the charge and finding were of an attempted burglary while here the charge and proof were of second degree burglary, the submission was of attempted burglary and the verdict was “guilty as charged.” As noted, in the Pigques case it was held that “the evidence does not show the crime of burglary was fully perpetrated,” on the contrary it was held that the evidence “justified the submission and supported the conviction of defendant of an attempt to commit burglary. Sec. SS6.1S0, supra,” and thus the force and effect of
PER CURIAM.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.
All of the Judges concur.