State v. Boone
| Decision Date | 19 January 1973 |
| Docket Number | No. KCD26028,KCD26028 |
| Citation | 490 S.W.2d 318 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Daniel BOONE, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Joseph F. Caresio, Kansas City, for defendant-appellant.
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Before SHANGLER, C.J., PRITCHARD and WASSERSTROM, JJ., and FRED E. SCHOENLAUB, Special Judge.
Defendant was charged in Bates County, Missouri, with burglary in the second degree and stealing. A change of venue was granted to Henry County, Missouri. Trial by a jury was waived. Defendant was convicted of burglary in the second degree and stealing, and was sentenced to a term of two years for burglary and two years for stealing, the terms to run consecutively. Sections 560.045 and 560.110, Mo.R.S.1969 V.A.M.S. Motion for new trial was overruled and defendant appeals.
At approximately 6:30 p.m. on September 7, 1970, the Robert Jarman family left their home to attend a supper at a swimming club in Butler, Missouri. Their garage door and three interior doors were left open. The screen doors on all three interior doors, however, were closed. Another door and all windows in their home were closed. When they returned they observed two cars parked in their driveway, a 1968 Chevrolet near the entrance of the driveway and a 1967 Plymouth, with its trunk open, backed up to the entrance to their garage. They stopped their car at the end of the driveway immediately in front of the Chevrolet, which then rolled forward until it ran into their car. It was then backed away by a girl who had been partially hidden in the front seat. The Jarmans observed the defendant behind a brick wall extending south from their garage. He looked around the side of the wall three different times. They also observed another man run around the side of the house and push the defendant back behind the wall. The defendant then stepped from behind the wall and walked up to the Jarmans. He told them he was looking for a person who owed him some money and thought he lived at the Jarman home. He then started walking away from Mr. Jarman and was told to wait until Mr. Jarman could check the house and see what was going on. Defendant kept walking, got into the Chevrolet, backed up a few feet, drove around the Jarman car and out of the driveway. When the defendant started walking toward the Jarmans the other man shut the trunk of the Plymouth, got in on the driver's side and drove off. A woman in the Plymouth laid down in the front seat. The Jarmans went into their house and found a billfold and typewriter missing. The billfold was later found in the living room. Money which had been in the billfold was gone. A pay envelope and plastic case containing typewriter correction ribbon, both of which had been on top of the typewriter, were found in the driveway between the two cars. A walkie-talkie was also reported missing but was later found.
Defendant first contends the evidence was insufficient to support a conviction for stealing. He also alleges that the trial court erred in overruling his motion for acquittal in that there was insufficient evidence that he participated in breaking and entering the Jarman home. These points will be considered together. In testing the sufficiency of the evidence in a criminal prosecution, the evidence and all reasonable inferences therefrom must be considered in the light most favorable to the State and all evidence and inferences to the contrary must be rejected. State v. Hicks, Mo., 438 S.W.2d 215, 218; State v. Hughey, Mo., 404 S.W.2d 725, 729. The evidence clearly established that all of the doors, or screens, and all of the windows of the Jarman home were closed when the Jarmans left, that the house was entered while they were gone, and that a typewriter and money from Mr. Jarman's billfold were taken. This evidence and the permissible inferences therefrom constitutes sufficient evidence that the offenses of burglary and stealing were committed by some one or more persons.
Defendant contends, however, that the State's evidence concerning his participation was totally circumstantial and insufficient. In State v. Rogers, Mo., 380 S.W.2d 398, 400, this court held:
Defendant relies on several cases wherein the evidence produced by the State was held to be insufficient to establish the accused's participation in the commission of the crime. In none of these cases are the facts substantially similar to ours. In State v. Archer, Mo., 6 S.W.2d 912 defendants were shown to have been present at a point an eighth of a mile away from a truck during the night on which four tires were removed from it. They were seen no nearer than an eighth of a mile. They were not seen coming from the direction of the truck. They were not found in possession of nor near the stolen tires and they were not seen driving away with a load of any sort, in their automobile. In State v. Murphy, 356 Mo. 110, 201 S.W.2d 280, it was shown only that defendant and another man had stopped defendant's truck on a country road in the vicinity of the yard from which a gas engine was later found to have been stolen, that there were tracks around the truck, that a path was found in the grass leading up to the yard, and also tracks around the place where the engine had been located. There was no real examination of any of the tracks, nor was defendant shown to have been present at the time of the actual theft. In State v. Favell, Mo.App., 411 S.W.2d 245, the only evidence connecting defendant with the theft was his proximity to a welding shop office from which a typewriter was later stolen, and his presence nearby with three others when the typewriter was found. In State v. Castaldi, Mo., 386 S.W.2d 392, the State proved defendant's presence at the scene of the crime, an opportunity to commit the crime, suspicious circumstances, and perhaps flight, but there was no evidence from which it could be inferred that he encouraged or excited the commission of the offense, participated therein, countenanced, approved or associated himself with the crime, or that he knew that a crime was being or had been committed. In State v. Rutledge, 304 Mo., 32, 262 S.W. 718, defendant was seen going into the enclosure at the rear of a building which had been burglarized. There were no other corroborating circumstances....
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