State v. Caffey, 51596

• Decision Date: 13 June 1966
• Docket Number: No. 51596,No. 1,51596,1
• Citation: 404 S.W.2d 171
• Parties: STATE of Missouri, Respondent, v. Jack Virgil CAFFEY, Appellant
• Court: Missouri Supreme Court

Page 171

404 S.W.2d 171

STATE of Missouri, Respondent, v. Jack Virgil CAFFEY, Appellant.

No. 51596.

Supreme Court of Missouri, Division No. 1.

June 13, 1966.

Motion for Rehearing or to Transfer to Court En Banc Denied

July 11, 1966.

Norman H. Anderson, Atty. Gen., Jefferson City, Norman A. Selner, Special Asst. Atty. Gen., Clayton, for respondent.

Hildebrandt & Smith, Springfield, for appellant.

HENLEY, Judge.

Defendant was charged by information with burglary in the second degree and stealing, and a prior conviction under the Habitual Criminal Act. Sections 560.070, 560.156 and 556.280, RSMo 1959, V.A.M.S. Out of the hearing of the jury, evidence was submitted supporting a finding that defendant had been convicted of a prior felony, sentenced and imprisoned therefor. A jury found him guilty of the offenses of second-degree burglary and stealing. After his motion for new trial was overruled, the court determined and assessed his punishment at imprisonment for a term of four years on his conviction of burglary and imprisonment for a term of two years on his conviction of stealing, the sentences to run consecutively. He appeals from the ensuing sentences and judgment.

He assigns as error action of the court in overruling his motion for judgment of acquittal at the close of the state's case for the reason that the evidence (which he contends was wholly circumstantial) was insufficient to sustain a judgment of conviction. Defendant offered no evidence in his own behalf. The evidence at the trial developed the following facts.

In the early morning hours of January 9, 1965, at about 12:30 a.m., the defendant was found crouched or hunkered down behind a desk in the cashier's office of the Teamsters Union Hall, Local 245, in Springfield, Missouri, by Carl Page and Bob Kirk, assistant business representative and organizer, respectively, of the Union. Page and Kirk had been to Camdenton that day and on their return to Springfield shortly after midnight they went to the Teamsters building to get Mr. Page's automobile keys from his office. Using his key to unlock the south or rear door, Mr. Page, with Mr. Kirk close behind him, entered the darkened building and turned on a light. En route down the hallway to Page's office they heard a noise from the cashier's office. Suspicious of the noise, Kirk remained at the locked door of the cashier's office while Page went to the hall door of an adjoining and connecting office. He unlocked this door and then gave the keys to Kirk who unlocked the cashier's office door. Entering the two rooms and turning on lights almost simultaneously they discovered the defendant in the position above described. Defendant is not a member of the local Union and had no authority to be in the building. One of them ordered the defendant to stand up with his hands above his head. While Page was using the telephone to call one of the officers of the Union, defendant attempted to escape. A scuffle ensued and he was subdued in the hallway by Page and Kirk. The police arrived within a few minutes and defendant was placed under arrest. He was searched and approximately $20 in currency and change, a pocket knife, a pair of gloves, and two hard-steel instruments later identified as capable of being used effectively as lock-picks were found on his person. A flashlight was found on a desk in the cashier's office. In the cashier's office a file cabinet drawer in which the petty cash box was kept was found standing open.

The secretary in charge of the petty cash fund testified that she inventoried the petty cash box, placed it in the file drawer, locked the drawer and put the key in her desk before she left the office shortly after 5:00 p.m., Friday, January 8, 1965; that she returned to the office Monday morning, January 11, inventoried tye petty cash box and found it short $19.60.

After defendant was placed under arrest, all outside windows and doors were checked and all found closed and locked, except double doors on the front or north side of the building which were found closed but unlocked. These doors could be locked or unlocked from the outside or inside only by the use of a key. No mars or scars were found on these doors to indicate that they had been forced open.

The last person to leave the building on January 8, was William W. Kitts, who was holding a meeting of about 15 or 20 members of Joplin Local 823 in the auditorium of the building. Mr. Kitts testified that he saw Raymond Barton, janitor of the building, close and check all windows and doors of the building, including the inside doors, before Mr. Barton left shortly after 7:00 p.m. on the 8th; that the only door left unlocked by Barton was the rear or south door; that after those attending his meeting had left, at about 9:30 or 10:00 p.m., he turned out the lights and left through the south door, locking it with his key; that his key would not fit the north double doors, and that neither these nor any other doors were unlocked that evening after the janitor left.

The janitor testified that he left the Teamsters Hall shortly after 7:00 p.m., on January 8th, leaving Mr. Kitts and members of the Joplin Local in a meeting; that he showed Mr. Kitts some recent remodeling of the offices and as they went about the building, he checked all outside windows and doors, and inside office doors, to see that all were secure and locked; that when he left, all windows and doors, including the north side double doors and the door to the cashier's office (except the rear or south door), were locked, and all file drawers in the cashier's office were closed.

Detective Paul Jones of the Springfield Police Department testified that on Wednesday afternoon before the trial he took the two hard-steel instruments (found on defendant's person when arrested; identified, offered and received in evidence as state's exhibits A and B) out to Teamsters Hall and, along with others, watched a man from a local key service company take these instruments and with them unlock and then lock the north double doors of the Hall within a period of two minutes, all from outside the building.

Leo Deulen, President of the local Teamsters Union, testified that he was present on Wednesday afternoon before trial day and, along with others, watched a man from a local key service company use these two instruments to unlock and lock the double doors on the north side of the Teamsters building.

'Where the evidence of a defendant's participation in the offense charged is circumstantial, as it is in this case, 'the facts and circumstances relied upon by the State to establish guilt must not only be consistent with each other, and with the hypothesis of defendant's guilt, but they must also be inconsistent and irreconcilable with his innocence, and must point so clearly and satisfactorily to guilt as to exclude every reasonable hypothesis of innocence.' (citing cases) In ruling the sufficiency of the evidence to support a verdict of guilty, however, even where the evidence is wholly circumstantial, all of the evidence tending to support the verdict must be considered as true, and every legitimate inference therefrom favorable to the verdict must be indulged.' State v. Burton, Mo., 357 S.W.2d 927, 929--930(1, 2), and cases there cited. Also see: State v. Smith, Mo., 357 S.W.2d 120, 123(7).

The uncontradicted evidence is that when the last person left the Teamsters Union Hall at about 9:30 or 10:00 p.m., on January 8, all inside lights were out and all outside windows and doors, as well as all inside doors and file cabinet drawers in the cashier's office, were closed and locked; that shortly after midnight defendant, not a Union member and with no authority to enter the building, was found crouched or squatted behind a desk in the darkened and locked cashier's office in close proximity to the opened file cabinet drawer containing a box in which the petty cash fund was kept and from which $19.60 was missing; that defendant attempted to escape his accosters; that when searched approximately $20, an amount similar to that missing, was found on his person together with two hard-steel instruments capable of being used to pick the lock on the north double doors; that the windows and outside doors were checked within a few minutes after defendant's arrest and all were found to be closed and locked, except the north double doors which were closed but unlocked. From these facts and circumstances it reasonably may be inferred that defendant, with the described instruments, picked the lock on these doors, entered the building through this doorway, and took the money missing from the petty cash box.

We hold that this constituted sufficient evidence to support a finding that defendant broke and entered the building with the intent to steal and did steal. State v. Brewer, Mo., 325 S.W.2d 16, 20(9--12); State v. Fritz, Mo., 379 S.W.2d 589, 590--592(2--7); State v. Young, 345 Mo. 407, 133 S.W.2d 404, 407--408(10--11); State v. Burton, Mo., 357 S.W.2d 927, 930--931(3--4); State v. Luther, Mo., 338 S.W.2d 846, 848(6); State v. Hannon, Mo., 204 S.W.2d 915, 916--917(1, 2).

Defendant's next assignment is that the court erred in not submitting the issue of punishment to the jury for the reason that the information fails to charge properly a prior conviction in that it does not allege 'a valid sentence, imprisonment thereunder, compliance with said sentence and discharge thereunder.'

The first paragraph of the information alleges that on September 16, 1955, prior to the date of the offenses of burglary and stealing charged in the information, defendant was convicted in the Circuit Court of Greene County, Missouri, of felonious assault, an offense punishable by imprisonment in the penitentiary, sentenced to imprisonment for three and one-half years and thereafter imprisoned therefor. The information meets the requirements of § 556.280 and is sufficient. It was not necessary that the information allege...