State v. Childers

581 S.W.2d 619, 1979 Mo. App. LEXIS 2833

• Court: Missouri Court of Appeals
• Decided: May 17, 1979
• Docket: No. 11041
• Status: Published

Opinion

BILLINGS, Judge.

Defendant James Dwight Childers was convicted by a Maries County jury of stealing property of a value of at least $50 [§§ 560.156, 560.161, RSMo 1969] and sentenced as a habitual criminal to a three-year prison term. Claiming he was entitled to an instruction submitting the offense of stealing property of a value less than $50¹ defendant has appealed. We affirm.

Defendant’s single point is not preserved for review because the refused instruction, tendered by defendant, is not set forth in the argument portion of his brief as required by the rules. Rules 28.18 and 84.04(e), V.A.M.R.; State v. Stuebinger, 552 S.W.2d 338 (Mo.App.1977). Furthermore, defendant’s motion for new trial failed to indicate in any manner what facts in evidence were considered sufficient to warrant such an instruction and fails to comply with Rule 27.20(a), V.A.M.R. State v. Cheek, 413 S.W.2d 231 (Mo.1967).

The judgment is affirmed.

All concur.

1 . The only evidence of the value of the stolen television set was $100 by the owner and $60 by a television dealer. .. [A]n instruction on stealing less than $50 need not be given where the only evidence of value is that the stolen property is worth over $50.” State v. Davis, 544 S.W.2d 600 (Mo.App.1976).