State v. Owens

592 S.W.2d 824, 1980 Mo. LEXIS 408

Opinion

PER CURIAM.

This cause was transferred to this Court by the court of appeals, eastern district, “for clarification of [State v. Amsden, 299 S.W.2d 498 (Mo.1957)], as interpreted by Friedman, Fleming, and Stone.”

The defendant was convicted by a jury of second-degree burglary in violation of § 560.045, RSMo 1969, and was sentenced to a term of seven years in the custody of the division of corrections. He unsuccessfully sought to have the jury instructed on the offense of trespass, an offense the defendant claims is a lesser included offense of burglary as charged and proved in this case.

In State v. Smith and Hodges, 592 S.W.2d 165, decided by this Court on December 6, 1979, the issue was whether trespass is a lesser included offense of burglary second degree. We held it is not.

Our opinion in State v. Smith and Hodges became final when no motion for rehearing was ■ filed. Accordingly, the reason for transferring the instant case to this Court no longer exists. It is therefore ordered that the instant case be retransferred to the court of appeals, eastern district, for further proceedings consistent with our opinion in State v. Smith and Hodges, supra.