State v. Brewer

• Decision Date: 10 October 1960
• Docket Number: No. 1,No. 47957,47957,1
• Citation: 338 S.W.2d 863
• Parties: STATE of Missourl, of Plaintiff-Respondent, v. Robert BREWER, alias Robert Jones, Defendant-Appellant
• Court: Missouri Supreme Court

Page 863

338 S.W.2d 863

STATE of Missourl, of Plaintiff-Respondent, v. Robert BREWER, alias Robert Jones, Defendant-Appellant.

No. 47957.

Supreme Court of Missouri, Division No. 1.

Oct. 10, 1960.

Stanford M. Katz, Kansas City, for appellant.

John M. Dalton, Atty. Gen., James E. Conway, Asst. Atty. Gen., for respondent.

HOUSER, Commissioner.

Robert Brewer, alias Robert Jones, was charged with intentionally stealing property of another of the value of $100 without the consent of the owner thereof, an offense punishable by imprisonment in the penitentiary (Secs. 560.156 and 560.161), ¹ and in the same information was charged under the Habitual Criminal Act (Sec. 556.280, as amended, Laws 1959, S.B. No. 117, Sec. 1).

Prior to the submission to the jury of the charge of stealing, the circuit judge conducted a hearing without the aid of the jury, resulting in a finding and determination by the judge that defendant previously had been convicted of Breaking Jail and Escaping; that defendant was received at the penitentiary and had served part of his sentence; that defendant's previous sentence was thereafter commuted by the Governor, and that defendant had been discharged.

On the submission of the charge of stealing, the jury found defendant guilty of Stealing over $50. The trial judge fixed his punishment at imprisonment in the penitentiary for a term of nine years. Defendant filed a motion for new trial which was overruled. Defendant has appealed from the judgment of conviction.

No brief having been filed by defendant the case is before this Court on the transcript of the record and the State's brief. Our review extends to the essential record and the allegations of error properly preserved in the motion for new trial. Supreme Court Rules 27.20, 28.02 and 28.08 V.A.M.R.; State v. Bryant, Mo.Sup., 319 S.W.2d 635.

In the pre-trial hearing before the circuit judge the State introduced a picure of Robert Brewer, alias Robert Jones, taken at the penitentiary; a transcript of the Missouri State Penitentiary serial record of the defendant and the fingerprints of the defendant taken at the penitentiary. The foregoing was certified in transcript form by the warden of the penitentiary. The transcript tended to show that defendant was convicted in Jackson County of the offense of Breaking Jail and Escaping; that he was sentenced to two years in the penitentiary on October 21, 1957 and received at that institution October 30, 1957 to commence serving his sentence; that he received commutation of sentence by the Governor on December 24, 1958, and was discharged.

At the trial before the jury the State introduced evidence tending to show that on June 21, 1959 Rufus Otwell parked his truck on Summit Street in Kansas City, and stayed all night in a nearby hotel. When he returned to the truck the next morning the spare tire, which had been bolted onto the front end of the truck when Otwell parked it (a newly recapped tire worth $75, containing a tube worth $11, mounted on a wheel worth $20), was missing from his truck. In the meantime a police officer had arrested Robert Brewer, who had been found 'prowling' among some trucks in that neighborhood. A truck tire, mounted on a wheel, later positively identified as the missing property of Otwell, was found in the trunk of the defendant's automobile, which had been parked in the vicinity.

Defendant did not take the stand or offer any evidence.

Section 560.156 subd. 2 makes it unlawful 'to intentionally steal the property of another, * * * without his consent * * *.' 'Steal' is defined in subd. 1 (2) as meaning 'to appropriate by exercising dominion over property in a manner inconsistent with the rights of the owner,' inter alia, by taking possession of his property. Section 560.161, subd. 1(2) prescribes the penalty for conviction of Stealing where the 'value of the property stolen is at least fifty dollars.' The information charged that defendant did 'unlawfully, feloniously and intentionally steal certain property, to wit: One (1) Kelly Truck Tire and wheel, 9:00 X 20 size, serial # R 85127F, of the value of One Hundred ($100.00) and no/100 Dollars; the property of Rufus E. Otwell, without the consent of the owner thereof; against the peace and dignity of the State.' This is a plain, concise and definite statement of the essential facts constituting the offense, as required by Supreme Court Rule 24.01. It informed the defendant with reasonable certainty of the offense with which he was charged. From its allegations the admissibility of evidence could be determined. A conviction under this information would bar another prosecution for the same offense. The information is sufficient to charge the offense of intentionally stealing the property of another or the value of at least $50, without his consent.

The information charged defendant under the Habitual Criminal Act (Sec. 556.280, as amended, Laws 1959, S.B. No. 117, Sec. 1). That Act applies to felony convictions after having been previously convicted of an offense punishable by imprisonment in the pentitentiary wherein the person convicted was 'sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor * * *.' The information charged that defendant 'on the 21st day of October, 1957, at the County of Jackson, State of Missouri was then and there convicted of a felony, to wit: Breaking Jail and Escaping and was sentenced therefor to serve a term of 2 years in the Missouri State Penitentiary at Jefferson City, Missouri, that he was received at said penitentiary on the 30th day of October, 1957, and that thereafter on December 24, 1958, he was discharged from said penitentiary under commutation of sentence by Governor Blair * * *.' The information is sufficient under the Habitual Criminal Act.

The verdict of the jury ('We, the jury, find the defendant, Robert Brewer, alias Robert Jones, guilty of Stealing over (fifty) $50.00. / s/ Harold E. Atkinson, Foreman') does not expressly show on its face that the jury found defendant guilty of stealing the property of another of the value of at least fifty dollars, but this does not constitute reversible error for the reason that in the light of the record the meaning of the verdict is not subject to reasonable doubt. By referring to the information, the evidence, Secs. 560.156 and 560.161 under which defendant was prosecuted, and the instructions of the court, 52 C.J.S. Larceny Sec. 155, p. 1013, it is beyond cavil that defendant was charged, tried and convicted of stealing property of another of the value of at least fifty dollars; that the only question for the jury to determine was whether defendant was guilty or not guilty of stealing the precise property described in the information; that there was no evidence that defendant stole any property other than the tire, tube and wheel; that the jury found that defendant was guilty and that the value of the property stolen was in excess of fifty dollars. Under these circumstances the verdict is sufficient to sustain the judgment rendered. State v. Jacobs, Mo.Sup., ...