State v. Burton, 48998
| Decision Date | 11 June 1962 |
| Docket Number | No. 48998,No. 2,48998,2 |
| Citation | 357 S.W.2d 927 |
| Parties | STATE of Missouri, Respondent, v. George BURTON, Appellant |
| Court | Missouri Supreme Court |
Robert P. Stanislaw, St. Louis, Missouri, for appeallant.
Thomas F. Eagleton, Atty. Gen., William L. Hungate, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
STOCKARD, Commissioner.
George Burton and Willie Cox were found guilty by a jury of attempted burglary in the second degree. Both were charged and tried under the habitual criminal act. The trial court assessed Burton's punishment at imprisonment for a term of five years, and he alone has appealed. He contends that the evidence was insufficient to authorize a finding by the jury that he was guilty of the offense charged, and that the trial court erred in refusing to grant his motion for judgment of acquittal. A detailed statement of the evidence is required.
John Baliva operated a grocery store and meat market, referred to as Johnny's Market, at 1501 Franklin Street (the corner of Franklin and Fifteenth Streets) in the City of St. Louis. On Friday evening, March 24, 1961, about 8:30 o'clock, Willie Cox entered the store and purchased some food. Mr. Baliva then offered to let him have an apartment over the store rent free if Willie would help him clean the store the following Sunday. Willie replied, 'It's a deal,' and they shook hands. Willie then told Mr. Baliva that 'he heard Thursday night * * two fellows were going to bump [Mr. Baliva] off,' which, according to Mr. Baliva, meant that the store was to be broken into or burglarized. At 10:30 o'clock that night Mr. Baliva closed his store and locked the front door with two padlocks. At 10:50 o'clock or about twenty minutes later, pursuant to a radio call, police officers Walter Allen and Earl Doyle drove in a police 'cruiser' to 1501 Franklin. As they approached they saw appellant, Willie Cox and William Smith standing in front of Johnny's Market aobut five to seven feet east of the front door. The men remained there 'milling around' until the police officers arrived. At the same time police officer Richard Limpert was approaching on foot, and he saw one of the three men, later identified as William Smith, throw a hunting knife into the street which the police officer recovered. Officer Allen examinted the front door of Johnny's Market and found 'marks on the door like slug marks * * * and one lock was off the hasp.' The hasp was 'pulled loose' and 'just hanging there.' The other lock was still on the door but it 'looked like someone had been tampering around with it, it had marks dug into the wood around it;' the 'wood around the hasp was chewed out.' According to one police officer the door had been 'jimmied.' The missing lock was found nearby in Fifteenth Street. The police officers placed appellant and his two companions under arrest.
Appellant's pink and white two-door Ford automobile was parked in front of Johnny's Market. In the back seat of the automobile on the floor the officers found a hammer, a tire tool and a lug wrench which were designed to be used for removing hub caps, tightening lugs and removing tires.
Officer Limpert obtained some 'paint samples' in the form of paint 'scrapings' or 'shavings' consisting of both wood and paint from the floor directly below the door of Johnny's Market. He also obtained a sliver of painted wood from the door. A 'finger print expert' for the police department examined the front door of Johnny's Market with 'dusting powder' but found no prints of any value. He did not attempt to 'lift' finger prints from the tire tools or from the padlock which was found in the street.
After appellant and his companions were taken to the police station their trousers were examined by police officer Frank Grosse, a qualified chemist. He 'processed' appellant's clothing for 'superficial debris,' removed all 'foreign matter,' and divided it into three groups: glass, paint chips, and all debris except paint chips and glass. Two paint chips were found on appellant's trousers. Each was smaller than a pinhead and with the naked eye one could not tell what they were. On the trousers of Willie Cox he found two paint chips but no glass. Officer Grosse mounted a paint chip found on appellant's trousers and a paint chip taken from the area of the front door of Johnny's Market on separate pinheads beneath the eye pieces of a twentypower comparison microscope. A colored photograph of the two chips was then taken, and the picture was shown to the jury by use of a projector and screen. Officer Grosse testified that the sequence of the layers of paint on the chip taken from appellant's trousers was 'maroon or red over green, over white, and I think green repeated,' and that there was an 'agreement in the coloring of the layers' of paint in the two chips. He expressed the opinion that the chips 'very likely came from the same source' and that it was a 'very remote possibility' that they came from different sources. The two chips of paint found on the trousers of Willie Cox had only two layers of paint, apparently because the chips were not deep enough, but in their limited showing they also corresponded with the paint chips from the door of Johnny's Market. Officer Grosse also examined the paint on the tire tools but he stated that while the paint smears on the tools 'agreed as to color' and they 'looked like the same' he 'could not correlate that paint with paint taken from the scene,' and the paint on the tools did not match the 'debris or chippings from the scene.' He also stated that it was 'possible' that the paint on the tools came from an automobile. On the hunting knife there was 'quite a concentration of green paint' which 'matched' and 'seemed to agree' with the green paint on the chips taken from the door of Johnny's Market.
Willie Cox did not testify, but appellant testified in his own behalf. He stated that he was employed by 'Big Bill' Dukey who had a place of business on Franklin Avenue between Fifteenth and Sixteenth Streets, and that on the day he was arrested he had been wrecking a red ice cream truck, and in doing so he used a hammer, crowbar, torch, and the tire tools found in the back seat of his automobile. He testified that after completing that work he returned to his employer's place of business on Franklin Avenue about 8:00 o'clock in the evening. He went to Willie Cox's house at 1621 Franklin Avenue and then went to Johnny's Market to buy food. He saw Cox talk to John Baliva while there. After dinner he and Willie purchased some wine and were drinking it in front of a liquor store on Franklin Avenue between Fifteenth and Sixteenth Streets when William Smith joined them. Appellant then drove to Fifteenth and Franklin to meet his wife. He parked his automobile 'around the corner' on Fifteenth Street and the three of them sat in the automobile drinking wine and listening to...
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