State v. Armstrong

• Decision Date: 21 June 1977
• Docket Number: No. 37556,37556
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Samuel William ARMSTRONG, Defendant-Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 640

555 S.W.2d 640

STATE of Missouri, Plaintiff-Respondent, v. Samuel William ARMSTRONG, Defendant-Appellant.

No. 37556.

Missouri Court of Appeals, St. Louis District, Division Four.

June 21, 1977.

As Modified On Court's Own Motion July 21, 1977.

Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.

Robert A. Hampe, St. Louis, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., George A. Peach, Circuit Atty., Julian D. Cosentino, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

PER CURIAM.

Samuel William Armstrong, charged with four counts of receiving stolen property, § 560.270, RSMo 1969, and convicted on three counts, was given three 2-year sentences. He appeals from the judgment of conviction, contending that the State failed to prove that he "received" the stolen goods and that he had knowledge that the goods were stolen.

Appellant and his business partner Michael Primus operated a boutique shop at 4960 Delmar Boulevard and a restaurant at 4924 Delmar Boulevard in the City of St. Louis. Appellant rented the buildings housing the shop and restaurant from Chris Smyrniotis. Later appellant rented a garage building at the rear of 4960 Delmar, for the declared purpose of storing some personal goods (furniture, pictures, clothing, incense, etc.) and some "back-up" merchandise for the store.

On May 6, 1974 city police officers were patrolling the area in the course of a routine investigation. As they drove through the alley in the rear of 4960 Delmar appellant and Primus were observed standing outside the rear of the garage at a bay door, in the process of turning from the door. Appellant was withdrawing the key from a lock or, from the motion of his hand coming down from the door with a key, appeared to be withdrawing the key from a lock. The officers stopped their van, dismounted, and approached appellant and Primus. On being confronted by the officers one of the men dropped a bag. Officer Monroe picked up and inspected the bag, which apparently contained marijuana. The men were arrested for violation of the Missouri controlled substance law by possession of marijuana. Two of the officers observed and smelled smoke coming from underneath the garage door. Officer Monroe took the key from appellant's hand and, using the key, entered the garage through the bay door to investigate the cause of the smoke. The smoke was found to be coming from a smoldering acetylene torch, which was warm. Inside the garage officers observed a number of automobiles in various stages of being disassembled or "stripped." Four of them were body shells only. All had parts missing. There were automobile tools, automobile parts, wheels, drive shafts, rear ends, radiator assemblies, and accessories strewn about. Other parts of unidentified automobiles indicated that other automobiles had been completely dismantled in the garage. Appellant and Primus told the officers they knew nothing about the automobiles. The officers searched for but did not find any person or persons on the premises. Officers from the auto theft section of the police department were called. By number they identified ten automobiles in the garage and ascertained the names of the registered owners. The papers on an eleventh automobile were found. Further investigation revealed that theft reports had been made on all eleven vehicles. The owners of three of the automobiles were called to the garage. Each positively identified one of the cars as his property and testified that his car had been stolen. Two of them were stolen on April 2 and the third was stolen on April 16, 1974.

Appellant testified at the trial as follows: He was caretaker of the garage building during the summer of 1973. He rented the garage in November, 1973. There was a fire in the garage that summer. Appellant called the fire department. He told a police officer who answered the fire alarm that he managed the property and had rented it to one Richard Smith. On page 218 of the transcript appellant, testifying to events in 1973, stated that he was not aware that the garage had been used to strip stolen cars or for the purpose of keeping stolen cars. On page 219 he testified that the police came to the garage and found a number of stolen cars inside. After renting the garage in November, 1973 appellant stored therein some of his furniture and personal effects and some goods belonging to his shop. He rented the garage to one Richard Miller March 1, 1974. Miller was given a key. A second key was kept inside the store. From March 1, 1974 to May 6, the date of arrest, appellant had no reason to enter the garage and did not do so. When police found him and Primus in the alley they had not been in the garage; they were in the alley cleaning up trash and debris in response to a notice from the city. He had no knowledge of the automobiles found in the garage; had never seen them; had never been inside or looked inside the garage. He did not enter the garage between November, 1973 and May 6, 1974. He did not remember Richard Miller's address. Miller paid him $125 a month rent from March, 1974 through June, and he gave Miller receipts. Appellant's testimony was uncorroborated. Neither Primus, Smith nor Miller testified.

Section 560.270, RSMo 1969 provides: "Every person who shall * * * in any way receive, with intent to defraud, any property that shall have been stolen from another, knowing the same to have been stolen, shall, upon conviction, * * * ."

Appell...