State v. Winters
State v. Winters
Opinion of the Court
Appellant was charged in an information with the offenses of burglary in the second degree and burglariously stealing. Sections 560.045 and 560.110 RSMo 1969, V. A.M.S.
Appellant does not question the sufficiency of the evidence to sustain the conviction and therefore a brief statement of the facts will suffice. Appellant met Mc-Callister and Curtis in Collinsville, Illinois, on the evening of February 20, 1972, between 6:30 and 7:00 p. m. and after a conversation concerning easy money the three men rode to Wright City, Missouri, in Mc-Callister’s automobile where they burglarized a home identified as the Snyder farm.
On appeal two points are presented for review. First, error in overruling appellant’s motion for change of venue and Second, error in the State’s verdict director instructions because they did not contain an aiding and abetting clause.
Appellant filed a timely motion for change of venue pursuant to Rule 30.04, V.A.M.R. supported by the affidavits of five persons: Dennis D. DeRoy, Joyce Johnson, John H. Johnson, William L. Johnson and Lee Young. At the hearing on the motion the testimony established that William L. Johnson, Joyce Johnson and Dennis D. DeRoy all resided in a house trailer at Indian Head Lodge, which is situated about one mile north of Wright City, Missouri. William and Joyce Johnson are husband and wife. John H. Johnson, the father of William L. Johnson, lived on an adjoining lot to where the William Johnsons and Dennis DeRoy lived and approximately three hundred (300) feet from the Johnsons’ trailer. Lee Young, the fifth affiant, lived approximately one mile from where the other four affiants resided. On the date the affidavits were signed the five affiants were in a tavern at Indian Head Lodge when an investigator asked them if they would be willing to sign an affidavit. Mr. Young testified that he had not heard the case discussed on radio and television; this was contrary to what he said in his affidavit. He further testified that he did not believe that the inhabitants of the county were prejudiced against the appellant. Dennis DeRoy testified that he did not believe the inhabitants of the county were so prejudiced that the appellant could not receive a fair trial. John H. Johnson also testified that he did not think that the inhabitants of the county were so prejudiced that appellant could not have a fair trial; he testifed that the only person he heard discuss the case was a man from St. Louis who got him to sign the affidavit for the change of venue.
At the conclusion of the evidence on the motion the trial court overruled the motion for change of venue. His order reads:
“The Court finds that said motion is not supported by affidavits of five or more credible, disinterested witnesses residing in different neighborhoods of Warren County and further finds that defendant has failed to prove to the satisfaction of the Court by legal and competent evidence the grounds stated in said motion seeking a change of venue, and defendant’s said motion is, therefore, denied.”
Supreme Court Rule 30.04 and Section 545.490 require the affidavits of five (5) or more credible, disinterested citizens residing in different neighborhoods of the county where the case is pending in support of the application for a change of venue under the Rule. These requirements
Appellant’s second point has been ruled against him in State v. Price, 362 S.W.2d 608, 611 [4] (Mo. 1962), and in State v. McCollum, 377 S.W.2d 379, 387 [15] (Mo. 1964). The thrust of appellant’s contention here is the same as it was in those two cases, viz., that the verdict directors hypothesize a specific finding that the appellant acted with others jointly and with common intent. Instruction No. Three submitted that proposition of law and sufficiently submitted that issue to the jury when read together with the other instructions in the case. The court in McCollum said, 377 S.W.2d l.c. 387: “While it would have been preferable for instructions 2, 3, and 4 to have referred to joint action by some expression such as defendant acting jointly with others with a common intent, etc., nevertheless, instructions 2, 3, and 4, read with instruction 6, sufficiently covered the matter of the joint commission of the crimes charged, and thus it was not essential, upon this record, that instructions 2, 3, or 4 hypothesize a specific finding that defendant acted with others jointly with a common intent.”
We also rule this point against appellant.
Judgment affirmed.
. AU references to Statutes herein are to RSMo 1969 and to Rules are to Vernon’s Annotated Missouri Rules.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.