State v. Cline, 53967

• Decision Date: 13 April 1970
• Docket Number: No. 53967,No. 1,53967,1
• Citation: 452 S.W.2d 190
• Parties: STATE of Missouri, Respondent, v. Clarence Norman CLINE, Appellant
• Court: Missouri Supreme Court

Page 190

452 S.W.2d 190

STATE of Missouri, Respondent, v. Clarence Norman CLINE, Appellant.

No. 53967.

Supreme Court of Missouri, Division No. 1.

April 13, 1970.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.

James E. Brown, Joplin, for appellant.

HIGGINS, Commissioner.

Clarence Norman Cline, charged as a second offender, Section 556.280, V.A.M.S., and with burglary, second degree, and stealing Sections 560.070, 560.110, V.A.M.S., was convicted by a jury of burglary, second degree, andstealing, and the court fixed his punishment at, and sentenced him to, imprisonment for 15 years for burglary and 10 years for stealing, the sentences to run consecutively and not concurrently.

Appellant's first attack goes to the amended information upon which he was tried. He contends its allegations are not sufficient to invoke the second offense statute, Section 556.280, supra, in that it did not allege that he had been "imprisoned,' fined, paroled, or placed on probation' following his prior conviction, see State v. Watson, Mo., 383 S.W.2d 753, 756(2), State v. Wiley, Mo., 412 S.W.2d 485, 487(3), State v. Martin, 441 S.W.2d 376, 377, and that the proof and the trial court's findings of prior conviction were similarly defective, and he was therefore entitled to have the issue of punishment submitted to the jury.

The sufficiency of the information to invoke provisions of the second offense statute is manifest in the allegation that 'on or about the 25th day of April, 1955, in the County of Jasper and State of Missouri, Clarence Norman Cline was duly charged and convicted * * * of the offense of Car Theft, and was on April 25, 1955, sentenced upon said conviction to a term of Three Years in the Missouri State Penitentiary, and was thereafter committed to the Department of Corrections of the State of Missouri, from which penal institution he was discharged under commutation of sentence on the 20th day of February, 1957.' The term 'committed' performs the same function as the term 'imprisoned' within the meaning of the second offense statute. State v. Briggs, Mo., 435 S.W.2d 361, 362--363(1, 2).

Proof of the prior conviction was made from the records of the Circuit Court of Jasper County showing that on April 25, 1955, Clarence Norman Cline was convicted of 'grand larceny of an automobile,' punishable by imprisonment in the penitentiary under the law then in force, Section 560.165, RSMo 1949, as well as under present law, Section 560.161, V.A.M.S., and that he was on that date sentenced to three years' imprisonment; and by certified transcript from the department of corrections showing his commitment at, and discharge from, the department of corrections. Upon the charge and proof, the court found that Clarence Norman Cline had a prior conviction under date of April 25, 1955, for 'grand larceny, being theft of an automobile,' was sentenced to three years' imprisonment in the penitentiary, was committed to the department of corrections, and subsequently was discharged upon commutation February 20, 1957. Such proof and findings are sufficient. State v. Briggs, supra.

Appellant also asserts these proceedings to be defective because the allegations and proof go to show a sentence of imprisonment in the penitentiary, while the commitment was to the department of corrections; however, this is proper procedure under Sections 216.208 and 216.209, V.A.M.S.

Appellant relied on alibi, and challenges the sufficiency of evidence in three respects, contending: (a) there is no evidence defendant was ever in the burglarized building until ordered there by the owner; (b) there is no evidence that defendant took anything from the burglarized building; (c) there is no evidence of ownership of the property alleged to have been stolen.

The charge was that Clarence Norman Cline on December 28, 1967, feloniously and burglariously broke and entered the Bradbury-Bishop Drugstore owned by Harry Bishop with intent to steal property from that building, and with feloniously stealing three Timex watches from their owner, Harry Bishop. A brief statement of the evidence with respect to each contention demonstrates their lack of merit.

On December 27, 1967, Harry Bishop was the owner and operator of a drugstore in Webb City, Missouri, known as Bradbury-Bishop Drug Company. At about 9:00 p.m., he closed and locked the store but remained in the office of the store to work on his records and books. In the early morning of December 28, 1967, he heard a rattle at the back door, which consisted of two iron doors with a screen door between them and an inner wooden door, all of which were locked. He heard a jar of the iron doors, a smash of the screen door, and a lifting of the latch on the wooden door. He stepped to the telephone, called the police, turned off the light and positioned himself where he could see from his office into the outer portions of the store. He heard loud talking and singing, 'a regular brawl of some type.' One person, a crippled man, came and stood near the office. Mr. Bishop turned on the lights and ran after the crippled man, at which time he noted two other men up front near the cash register and jewelry counter. All three, with Mr. Bishop chasing them, headed for the rear door where they were stopped by Officers Bell and Heaton with guns drawn. One man, later identified as Clarence Norman Cline, jumped into a trash bin near the door, and the other two, later identified as Roy Maggard and Dick Gerard, were stopped after they ran out the door. Mr. Bishop identified appellant at the trial as one of the men in his drugstore. All three were brought into the store after these events. Two screwdrivers were found near the back door. This was sufficient to show appellant's presence in the drugstore as a result of a burglarious entry, see State v. Ruffin, Mo., 286 S.W.2d 743, and to refute appellant's contention (a).

It was not necessary to show that appellant, himself, took anything from the store, because when more than one person enters a store for purposes of stealing and but one steals, all are equally guilty. State v. Slade, Mo., 338 S.W.2d 802, 806(5). There is evidence to show that three Timex watches were taken and moved, and that they were abandoned when the police arrested the three men while fleeing from the store. When Chief of Police Alexander came to the store following the arrest of appellant and his companions, he went to the jewelry case, found it open, and on the floor found three empty watch cases. Two watches of the kind ordinarily kept in the jewelry case were found behind the store where Officer Bell saw Dick Gerard throw them. A third watch of the same type was found on the floor near the back door. The crippled man, Roy Maggard, stayed near the office from which Mr. Bishop made his observations and Dick Gerard and appellant were at the register and jewelry case. Mr. Bishop had checked the security of his jewelry case when he locked the store at 9:00 p.m. on the 27th. This was sufficient to show that three watches were taken while appellant, Gerard, and Maggard were in the store following their burglarious entry into the store and to refute appellant's contention (b).

Mr. Bishop identified the watches by their type and he placed his retail value on each of them. When they were found by the police they were given to Mr. Bishop but he left them with the chief of police, presumably as evidence. Mr. Bishop had seen them since December 28, 1967, and they were undamaged and in the same condition as when they were inside his jewelry case. This, with the other evidence, was sufficient to show Mr. Bishop's ownership of the watches and to refute appellant's contention (c).

In this last respect, appellant cites ...