State v. Beckemeyer, 53088
| Decision Date | 12 February 1968 |
| Docket Number | No. 53088,No. 2,53088,2 |
| Citation | 423 S.W.2d 687 |
| Parties | STATE of Missouri, Respondent, v. John Joseph BECKEMEYER, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Adam B. Fischer, Sp. Asst. Atty. Gen., Sedalia, for respondent.
Michael D. O'Keefe, St. Louis, for appellant.
STOCKARD, Commissioner.
Defendant, charged under the habitual criminal act, was found guilty by a jury of burglary, second degree. The trial court assessed his punishment at seven years imprisonment.
Defendant contends that the trial court erred in failing to sustain his motion for a directed verdict at the close of the evidence 'because the state failed to prove the defendant broke and entered the premises with the intent to commit a felony or to steal.'
On the evening of December 25, 1966, Robert Burton closed his confectionery store at 1051 Allen Avenue in St. Louis and locked both the front and back doors. Mr. Burton and his family resided above the confectionery store, and about 11:45 o'clock that evening Mr. Burton's son, Gary, heard what he described as a 'crach.' Gary awakened his father, who armed himself, and the two of them went downstairs. They found the defendant inside the confectionery store. A panel to the back door had been broken out and the door was open. The police were called, defendant was arrested and taken to the police station.
Mr. Burton testified that when he entered the confectionery store the defendant had 'just reached down to pick up his bags' (subsequently identified by a police officer as brown paper bags), and that he (Mr. Burton) had not left the bags there. When asked if he examined the store after he found defendant there, Mr. Burton stated 'there wasn't a whole lot missing,' and 'there were several things out of place, * * * costume jewelry, and some cigarettes dropped on the ice cream box also.' He identified a photograph as showing 'the cigarette rack,' and 'that area of the store' as it appeared on the night of December 25, 1966, but he said that it did not represent 'the way the store looked' when he had left it earlier that evening to go upstairs because 'the cigarette rack is empty and a few of the jewelry is missing here that I can't see.' The paper bags contained 'loose packs of cigarettes, scatter brooches, and tie clasps.'
Defendant does not challenge the sufficiency of the evidence to show a breaking and entering of the confectionery store by him. His challenge is limited to the contention that there was insufficient evidence to support a finding that the breaking and entering was done with the intent to steal therein. Intent is seldom subject to proof by use of direct evidence, and it usually must be inferred from the circumstances. State v. Chevlin, Mo., 284 S.W.2d 563. In State v. Cuffie, Mo., 403 S.W.2d 633, this court stated, concerning the proof of intent in burglary, that "Oftentimes the circumstances under which the breaking and entry are shown to have been made, in and of themselves, warrant a finding of an intent to steal." In this case the evidence shows that a short time before midnight defendant broke open a panel in the rear door of the confectionery store and entered it. He had with him at least two paper bags, and when he was discovered cigarette packages and items of costume jewelry had been removed from where the owner had left them, and cigarette packages and items of costume jewelry were in defendant's paper bags. The fact that defendant was not successful in his purpose does not prevent a finding that the breaking and entering was with the intent to steal. State v. Whitaker, Mo., 275 S.W.2d 316. The evidence in this case not only authorizes, but practically compels, the finding that the breaking and entering was done with the intent to steal therein. There is no merit to defendant's first point.
Defendant next asserts that the trial court erred in imposing the sentence instead of submitting the issue of punishment to the jury because, although defendant admittedly had been previously convicted of three felonies, 'no evidence was adduced to show whether the defendant had ever been sentenced and subsequently placed on probation, paroled, fined or imprisoned.'
Section 556.280, RSMo 1959, V.A.M.S., provides that if a person convicted of an offense punishable by imprisonment in the penitentiary 'shall be sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor,' shall thereafter be convicted of a felony, he 'shall receive such punishment provided by law for the subsequent offense as the trial judge determines.' Evidence of the prior conviction, sentence and subsequent imprisonment or fine, parole, or probation shall be heard and determined by the trial judge, 'and the court shall enter its findings thereon.' See State v. Garrett, Mo., 416 S.W.2d 116; State v. Hill, Mo., 371 S.W.2d 278; State v. Crow, Mo., 388 S.W.2d 817.
In the information it was alleged that defendant had on three occasions been convicted of felonies, that in each case he had been sentenced to...
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...of the required mental state is seldom available and such intent is usually inferred from circumstantial evidence. See, State v. Beckemeyer, 423 S.W.2d 687, 688 (Mo.1968); State v. Lawson, 585 S.W.2d 247, 251 Though defendant asserts his videotaped statement demonstrates he did not particip......
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