State v. Brim
| Decision Date | 14 November 1960 |
| Docket Number | No. 1,No. 48038,48038,1 |
| Citation | 339 S.W.2d 775 |
| Parties | STATE of Missouri, Respondent, v. Carl Otis BRIM, Appellant |
| Court | Missouri Supreme Court |
Lay & Ichord, Houston, for appellant.
John M. Dalton, Atty. Gen., Asst. Atty. Gen., for respondent.
Upon trial by jury for the crimes of burglary in the second degree, as defined in Sec. 560.070 RSMo. 1949, V.A.M.S., 1 and stealing in committing said burglary, as that offense is defined in Sec. 560.110, defendant was found guilty of both crimes as jointly charged in the information and his punishment was assessed by the jury at imprisonment in the State Penitentiary for a term of two years for the burglary and like imprisonment of two years for the stealing. He has appealed from the judgment and sentence imposed in accordance with the verdict. Although represented by counsel in the trial court, no brief has been filed in his behalf in this court. We, therefore, review the valid assignments of error set forth in his motion for new trial, as required by S.Ct. Rule 27.20, and the essential portions of the record, as required by S.Ct. Rule 28.02, Vol. 1, V.A.M.R. Among the assignments therein set forth are several challenges to the sufficiency of the evidence to support the verdict.
On and prior to June 27, 1959, Jesse George operated a dry goods store, owned by himself and his wife, in Summersville, Texas County. The building in which the store was located was owned by a Mrs. McDaniel. It was situate on the southeast corner of the 'square', facing north. There are two doors into the building, to wit: the front entrance door on the north and the rear door on the south end of the building. The rear door was of wood construction, with a large glass panel in the upper half. The street along the east side of the square extended south along the east side of the store and thence on south to and beyond a church.
On the date here involved, Saturday, June 27, a street carnival was in progress on the square, which offered various attractions for the entertainment of the general public. About 6:30 that evening, as was his custom, Mr. George closed his store, locked the rear door by shoving a bolt catch affixed thereon through an eye or slot attached to the door frame, and left through the front door, which locked automatically by means of a Yale night latch. On Monday morning, June 29, he returned to the store, unlocked the front door and, upon entry into the store, discovered the back door standing open, with the glass panel broken out, some of which had fallen inside the building and some of which had fallen outside. It was apparent that a screw driver had been inserted under the glass panel to pry the glass loose from the door frame and that some of the wood had been torn from the frame. A search of the premises showed that a considerable amount of merchandise, consisting pricipally of men's and women's apparel, some $5 to $15 in money, and other 'stuff', all of an estimated value of about $630, had been stolen from the store.
Further evidence adduced in behalf of the State, consisting primarily of the testimony of James Ray Ashmore and William John Stringer, admittedly accomplices in the commission of the offenses for which defendant was on trial, tended to show as follows:
On the Saturday of the burglary and stealing, Ashmore, then 14 years of age and residing in the City of St. Louis, was visiting in Texas County. On that day he and the defendant, aged 33, who also at that time was a resident of St. Louis, met at Hartshorn, a town near Summersville. Defendant had at one time been married to Ashmore's mother but was then divorced from her. Ashmore rode with defendant in defendant's car, a 1950 model, two-door Ford, to Summersville, where Ashmore attended the carnival and met his friend, Stringer, aged 19, who had been reared in or near Hartshorn. Later that evening, Ashmore and Stringer came upon and talked with defendant at a tavern in Summersville. The three thereafter rode around together in defendant's car, eventually stopping at the side of Jesse George's store. At that time and place defendant said to Ashmore and Stringer that he 'knew where we could pick up some easy money if we needed it'; following which statement, they talked about breaking into George's store. Either at that time, or after driving around for awhile in defendant's car and returning to the store, they got out of the car. Defendant and Stringer went to the rear of the store and Ashmore stood between the car and the store. It was then nighttime and the carnival continued in progress. Stringer came back to the car, got a screw driver from it and returned to the rear of the store and gave it to defendant, who used it to remove the glass panel from the door, which they then opened. When the glass was so removed, it fell and broke. Ashmore at that time saw some persons sitting in a car across the street and signaled (whistled) to defendant and Stringer to 'stop whatever they were doing' and return to the car. The three got into defendant's car and returned to the carnival. There, they picked up Lee Derryberry and Hayden Lewis and drove to Hartshorn, where, apparently, Derryberry and Lewis were let out of the car. Considerably later that evening, the three (defendant, Ashmore and Stringer) again rode in defendant's car to the George store and thence 'down the road a piece to a church house [one block south of the store] and parked behind it.' After parking, they walked to the rear of the George store. Ashmore opened the screen door and went inside. Defendant carried goods from the inside to the outside of the store and directed Ashmore and Stringer to carry them to the car, parked behind the church, which they did. Ultimately, the car was moved back to the side of the store and filled with more of the merchandise stolen from the store. The three then left in the car loaded with the stolen merchandise. They spent the night in the car and the next morning, Sunday, continued on to defendant's apartment on Westiminster in the City of St. Louis, where the stolen merchandise was removed from the car and stored in defendant's apartment. To throw off suspicion, the three returned to Hartshorn in defendant's car that day. Two girls, Barbara Perkins and Ruby Lewis, rode back to Hartshorn with them. Defendant promised Ashmore and Stringer one-third each of what he would realize from the sale of the stolen merchandise, which he estimated would amount to about $70 to $100 for each of them. However, defendant later told them that the merchandise was stolen from his apartment.
The evidence in behalf of defendant, consisting of his testimony which was supported in some of its aspects by the testimony of several of his friends and acquaintances, was that defendant did not participate in any way or manner in the burglary of the George store or the stealing of anything therefrom. He admitted, however, that he took Ashmore to the carnival about 8 p. m. that night; that he saw Stringer at the carnival and that at about 11 or 12 o'clock that night, as the carnival was closing, he and Ashmore and Stringer and two other men (Derryberry and Lewis) left the carnival and went in defendant's car to Hartshorn.
In rebuttal, the State adduced testimony of Johnny Howell, aged 15, that about 8 p. m. on the Saturday night involved, he and Howard Edgmond saw defendant, Ashmore and Stringer talking together between 'the tavern and barbershop'; that about 10:30 p. m. he saw them 'right at the corner of Jess George's store,' at which time the witness heard defendant say something to Ashmore and Stringer about 'wanting to get ahold of some easy money'; and that defendant, Ashmore and Stringer then left in 'a '50 Ford, white, two-door.' Howard Edgmond, aged 17, testified he saw the aforesaid three together at the tavern at about 8 p. m. and later 'pretty close to Jess George's store,' on the east side of it, and that he 'heard them say that they wanted to get some easy money,' but he could not remember which one made the remark. The three then went toward the car on the east side of George's store.
Such other evidence and trial incidents as are material to discussion and consideration of the assignments of error set forth in the motion for new trial will be hereinafter set forth.
The motion for new trial asserts the judgment herein cannot stand for the reason that the information charges defendant with burglary of and stealing from 'a certain store building of Jesse George, Summersville, Missouri,' while the evidence shows that no store building 'belonging to Jesse George'...
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