State v. O'Brien
| Decision Date | 12 May 1952 |
| Docket Number | No. 42934,No. 2,42934,2 |
| Citation | 249 S.W.2d 433 |
| Parties | STATE v. O'BRIEN |
| Court | Missouri Supreme Court |
Robert S. Allen, St. Louis, for appellant.
J. E. Taylor, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.
BARRETT, Commissioner.
Thomas Joseph O'Brien has been found guilty of burglary in the second degree and of three prior felony convictions and, therefore, the maximum penalty for the burglary, ten years' imprisonment, has been imposed. Sections 556.280(2), 560.095(2) RSMo1949, V.A.M.S. Upon this appeal it is asserted that the trial court should have directed a verdict for the defendant for the reason that the evidence did not establish the crime of burglary in the second degree, Section 560.070 RSMo1949, V.A.M.S., in that there was insufficient evidence of a 'breaking,' and no evidence that the appellant's entry into the apartment house was without the consent or permission of the owner.
The facts and circumstances relied upon by the state were these: On Friday, February 4, 1949, about 11:30 in the morning, Anton Amann went to his mother's apartment house at 2922 South 13th Street. She had agreed to live with him temporarily and he had called for the purpose of taking her to his home. He was in the apartment about thirty minutes and when they left the front and back doors were locked and the windows, particularly the rear kitchen window, were closed and the house was in order. Between 5:30 and 5:45 in the afternoon a young man, Donald Martin, saw the defendant and another man approaching Mrs. Amann's apartment. He stopped in a doorway and watched them, particularly noticing that the defendant wore 'a sort of an off-green hat.' The defendant walked around to the back of the apartment building while his companion loitered on the front walk. In a few minutes, in response to a radio call, two policemen arrived in a squad car. One of the policemen asked the man in front of the house where his companion was and the man pointed to the apartment house. As Officer Kuhlmann ran through the gangway, with Donald following, he saw the defendant jumping out of the kitchen window and as the defendant ran from behind some sheds Kuhlmann arrested him and immediately accused him of having been in the house. The defendant first admitted that he had been in the apartment but later claimed that he was taking a 'short cut' through the yard. Anton returned in a few minutes and he and the policeman entered the apartment and found that it had been thoroughly ransacked and a locked chifforobe had been broken open. Between the wall and a bed Anton found a green hat which Donald Martin identified as the hat the defendant wore. The policeman identified the defendant as the man he saw jumping from the open kitchen window. The doors were locked and all the windows were closed, except the kitchen window, and Anton testified that it was closed, he could not say whether it had been locked, when he left about noon.
In these circumstances the defendant countends that there is no 'direct evidence' that he 'broke into the Amann home.' Even though he was seen jumping from the rear window, it is argued that there was no evidence that he entered the house, or if he did as to how the entry was effectuated. If the defendant means that there must have been some evidence of a forcible 'bursting or breaking' of a window he has misconceived the difference in burglary in the first degree, Section 560.040 RSMo1949, V.A.M.S., and burglary in the second degree, the offense for which he was tried and convicted. Section 560.070 RSMo1949, V.A.M.S. These statutes have been in force since territorial days and it has been pointed out many times that it is only in first degree burglary that the method of gaining entry by 'bursting or breaking' is important. Any other 'breaking and entering of which shall not be declared by any statute of this state to be burglary in the first degree * * *,' if the entry is with the intent to steal or commit any crime therein, is burglary in the second degree. Section 560.070 RSMo1949, V.A.M.S.; State v. Young, 345 Mo. 407, 133 S.W.2d 404. Thus the state's evidence plainly shows, circumstantially, including...
To continue reading
Request your trial
-
State v. Burnett
...and, therefore, assignments which are based upon matters not shown by the record cannot be considered or determined. State v. O'Brien, Mo.Sup., 249 S.W.2d 433, 434(7); State v. Quilling, 363 Mo. 1016, 256 S.W.2d 751, 754(5); State v. Marlin, Mo.Sup., 177 S.W.2d 485, 487(2). Certain other as......
-
State v. Whitaker
...a 'breaking' within the meaning of Section 560.070 RSMo 1949, V.A.M.S.; State v. Helms, 179 Mo. 280, 78 S.W. 592; State v. O'Brien, Mo.Sup., 249 S.W.2d 433; 12 C.J.S., Burglary, Sec. 3b., p. There is no merit to the contention of defendants that a judgment of acquittal should have been ente......
-
State v. Peterson
...the glass and thus entered the building. State v. Henderson & Younger, 212 Mo. 208, 110 S.W. 1078, 17 L.R.A.,N.S., 1100; State v. O'Brien, Mo., 249 S.W.2d 433; State v. Whitaker, Mo., 275 S.W.2d 316. If after being discovered he left the building through the north door and ran, the describe......
-
State v. Zammar
...regard. It is only in first degree burglary that the method of gaining entry by forcibly bursting or breaking is important. State v. O'Brien, Mo., 249 S.W.2d 433. The remaining objections to the sufficiency of the indictment go to the larceny or stealing aspect of the charge. In 1955 the Le......