State v. Burrage

Decision Date10 July 1967
Docket NumberNo. 52287,No. 2,52287,2
Citation418 S.W.2d 101
PartiesSTATE of Missouri, Respondent, v. Albert BURRAGE, Appellant
CourtMissouri Supreme Court

Norman H. Anderson, Atty. Gen., Jefferson City, Gary A. Tatlow, Sp. Asst. Atty. Gen., Moberly, for respondent.

Elmer Price, Gary T. Sacks, St. Louis, for appellant.

FINCH, Presiding Judge.

Defendant was tried on an information which charged him with burglary in the second degree and stealing and with one prior felony conviction. The jury acquitted defendant of burglary but convicted him of the felony of stealing more than $50.00. The trial court found the defendant did have a prior felony conviction on which he had been incarcerated and fixed defendant's punishment at imprisonment in the City Workhouse for one year with credit to be given for two months and twelve days time spent in jail. Defendant has appealed from that conviction and sentence.

Defendant was represented in the trial court by appointed counsel, who filed a brief on appeal and argued the case orally. The questions presented on appeal involve the sufficiency of the evidence and the propriety of certain instructions.

The State's evidence, viewed most favorably, as we must do in passing on the sufficiency of the evidence to support a verdict of guilty, State v. Taylor, Mo., 324 S.W.2d 643, 76 ALR2d 671, supports the following recital of facts: On February 28, 1966, sometime between 8:15 a.m., and 3:30 p.m., a television set, a sewing machine, a hi-fi, some records, a fan, and a steam iron were taken from the apartment of Mrs. Barbara Davis at 1368a Clara in the City of St. Louis. The theft was discovered the latter part of the afternoon and Mrs. Davis notified the police.

On the evening of March 1, 1966, at approximately 10:30 p.m., two officers of the St. Louis Police Department noticed a car stopped in a 'No Parking' zone at 1500 Clara. Standing next to the rear door on the left side of the car was the defendant, Albert Burrage. Two people were observed on the other side of the car but they moved away and disappeared as the police car approached. The officers got out of their car and approached the parked car. The left rear door of that car was open and the officers observed a television set on the rear seat of the car.

The officers placed a parking violation ticket on the car and asked who owned the television set, and Burrage said that it belonged to him and that he was going to pawn it because he had a daughter in Homer G. Phillips Hospital and needed the money. He further stated that he brought it from his girl friend's house at 1368 Clara. He gave her name as Aline Baker. With reference to the car itself, defendant told the officers that it belonged to his brother-in-law, Joe Hughes, and said something to the effect that Hughes had gone over to East St. Louis, leaving the car there with him. The officers ascertained that the car was registered to Joe Hughes at an address in St. Louis. They sought to talk to him there but he was not at home and apparently there was no attempt to locate him later. The officers' best recollection was that the keys to the car were in the ignition switch at the time they talked to the defendant.

The officers told defendant they would go to 1368 Clara to see whether Aline Baker would verify his statement that he had brought the television set from her house, and they took defendant along. Miss Baker did not verify the defendant's story and said that she did not know anything about the television.

The officers then took defendant to the Seventh District Station at Union and Page for normal booking procedure. When defendant was searched, some pawn tickets were found in his pants pocket, one of which indicated on its face that it was for a sewing machine pawned at a pawn shop on Franklin Avenue. The officers contacted Mrs. Davis and she came to the police station and identified the television set as the one taken from her place. The next day, Officer Reed took Mrs. Davis to the pawn shop where she identified the sewing machine represented by the pawn ticket as being the one taken from her apartment.

The evidence disclosed that the defendant was living with Miss Baker at 1368 Clara, which was the downstairs apartment in the same building where Mrs. Davis occupied the second-story apartment.

We hold that the evidence was sufficient to sustain the conviction of defendant for stealing the articles in question. This was not simply a case of defendant being in the vicinity in suspicious circumstances. When the officers found defendant at 10:30 p.m., standing beside the open rear door of the car in which the stolen television set was located, he told them that the car belonged to his brother-in-law, who had gone to East St. Louis and had left the car there with him. The keys were in the car. Furthermore, defendant claimed ownership of the stolen television set, saying he had brought it from the apartment of his girl friend at 1368 Clara and that he was going to pawn it. Hence, he claimed ownership of and dominion over the stolen article found in his possession. In addition, the defendant had in his pocket a pawn ticket for the stolen sewing machine. It is true, as defendant points out, that the clerk at the pawn shop stated that he could not identify the defendant as the man who pawned the sewing machine, but the fact remains that the defendant, on the evening following the theft of the sewing machine, was in possession of the pawn ticket which covered the stolen sewing machine. Defendant asserts that the evidence did not clearly establish that the pawn ticket was in the pants pocket of the defendant and that the officers indicated that it might have been in the pocket of a fatigue jacket which defendant's brief asserts the defendant picked up off of the seat of the car when he accompanied the officers. We do not agree with this interpretation of the evidence. We find that Officer Reed said, 'To the best of my knowledge, those tickets came out of his pocket, his trouser pocket; I do not remember which one of his pockets it was, out of his trouser pocket.' When asked if he was sure that the ticket did not come out of the fatigue jacket, the officer replied, 'I don't known anything about a fatigue jacket.' This evidence, viewed most favorably for the State, certainly established that the pawn ticket was in the defendant's pants pocket.

The rule is well settled that possession of recently stolen property is sufficient to sustain a conviction of larceny. State v. Jones, Mo., 358 S.W.2d 782, 784(2); State v. Durham, Mo., 367 S.W.2d 619, 621(2); State v. Reagan, Mo., 328 S.W.2d 26, 29(6). To authorize such inference of guilt, the defendant's possession of the property should not be too remote in point of time from the larceny, and 'it should be a personal possession, exclusive, distinct and conscious, and unexplained.' State v. Durham, supra, l.c. 622. Where, as here, there is no question but what the property was stolen, or as to the identity of the property in the defendant's possession, and the possession was on the day following the larceny, and the defendant asserted ownership, possession and control over the property, it was permissible for the jury to infer therefrom that defendant had participated in the stealing.

Defendant cites several cases as authority for the proposition that the court erred in overruling his motion for judgment of acquittal. These cases, however, are not analogous. In State v. Rogers, Mo., 380 S.W.2d 398, a case of attempted burglary, there was no element of recent possession of stolen property present. An officer had observed the defendant in a car on a shopping center parking lot on two occasions during the night, but defendant was not seen attempting to break into the jewelry store and there was no evidence to connect the defendant with some items such as gloves, a white pillow case, etc., which were found in front of the jewelry store, and there was nothing to show anything except that defendant had an opportunity to commit the crime and had been guilty of suspicious actions.

In State v. Watson, Mo., 350 S.W.2d 763, the defendant was a passenger in a car in which some stolen goods were found. The driver of the car testified that he and another man and two women had committed the burglary but that the defendant had nothing to do with it and he had picked him up later as a hitchhiker. We will not detail all of the evidence in the case here, but the court concluded that the evidence was not inconsistent with the defendant being a hitchhiker and wholly innocent of the burglary and stealing, and hence reversed the defendant's conviction. The court held that the evidence did not establish possession of the stolen goods by the defendant so as to justify as inference of his guilt.

In State v. Walker, Mo., 365 S.W.2d 597, a power saw was stolen and was found about three weeks later in a creek about one-fourth mile from the house of the man from whom the saw was stolen. There was evidence that the defendant was in the neighborhood on the night of the taking, under suspicious circumstances, but this court held that circumstantial evidence showing a mere opportunity to commit a crime and creating a suspicion only is not enough to sustain a conviction for stealing. Here, again, there was no possession of stolen articles, and the case is not analogous. The same is true of the other cases cited on this point by the defendant.

Defendant's other claims of error presented on appeal relate to Instructions Nos. 3 and 5 and to the failure of the court to give Instruction No. A which was tendered by the defendant. The three instructions in question were as follows:

'Instruction No. 3

'If you find and believe from the evidence that the defendant is not guilty of burglary in the second degree, but find beyond a reasonable doubt that on February 28, 1966, the...

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    • United States
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    ...and all evidence and inferences to the contrary must be disregarded. . . . State v. McClinton, 418 S.W.2d 55 (Mo.1967); State v. Burrage, 418 S.W.2d 101 (Mo.1967). And the scope of our review extends only to a determination of whether there is sufficient substantial evidence to support the ......
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