State v. Cobb

• Decision Date: 08 September 1969
• Docket Number: No. 53332,53332
• Citation: 444 S.W.2d 408
• Parties: STATE of Missouri, Respondent, v. Harold COBB, Appellant.
• Court: Missouri Supreme Court

Page 408

444 S.W.2d 408

STATE of Missouri, Respondent, v. Harold COBB, Appellant.

No. 53332.

Supreme Court of Missouri, En Banc.

Sept. 8, 1969.

Norman H. Anderson, Atty. Gen., Jefferson City, Michael J. Yatkeman, Special Asst. Atty. Gen., Clayton, for respondent.

James E. Durley, Sedalia, Atty. for appellant.

STORCKMAN, Judge.

A jury convicted the defendant Harold Cobb of burglary in the second degree and stealing in connection therewith and fixed his punishment at two-years imprisonment on each charge. The court ordered the sentences to run consecutively and not concurrently. Section 560.110, RSMo 1959, V.A.M.S. The defendant was ably represented in the trial court by court-appointed counsel who also represents him on this appeal. A codefendant Ernest Greer was also convicted, but his conviction was set aside because it was discovered that he was under seventeen years of age when the crime was committed. The defendant Cobb is the sole appellant. He attacks the sufficiency of the evidence to support the verdict the giving of certain instructions, and allowing the state during the trial of the case to amend the information and to endorse on it the names of additional witnesses.

On February 27, 1967, at approximately 4:25 a.m., in response to a burglar alarm, a police patrol car was dispatched to a drug store owned and operated by Bingaman's No. 1 United Super Market, Inc., which was located at the State Fair Shopping Center in Sedalia. It had been raining and the pavement was wet. The evidence most favorable to the verdict shows that when the patrol car arrived at the parking lot the police officers, James Tuttle and Charles Shepherd, saw a GTO Pontiac automobile occupied by the defendant and three other persons about 20 feet from the north door of the drug store, sometimes referred to as Bing's or Bing's No. 1. The lights on the Pontiac were completely off and it was moving slowly. As the patrol car entered the parking lot, the Pontiac accelerated and was driven rapidly from the parking lot. As it turned left on Limit Avenue, the rear end 'fishtailed' and the car skidded into a ditch; it then came back across the highway and stalled in the middle of the road and crossways of it.

The police officers stopped their patrol car near the stalled Pontiac and ordered the occupants to get out on the driver's side. Ernest Greer was driving and left the car first. The defendant Cobb was riding on the right side of the front seat and got out next. A boy by the name of Herbert Horton and a girl whose name was once given as Courtney Bell were in the back seat and got out last. As the occupants of the Pontiac were getting out, a second patrol car occupied by officers Robert Lewis and James Curry arrived and assisted in searching the occupants, handcuffing them, and taking them to the police station.

An investigation at the drug store disclosed that a window beside the front door had been broken. The dimensions of the window were estimated by some witnesses as 6 feet by 4 feet and by others as 3 feet wide by 8 or 10 feet high. Approximately half or 3/4ths of the glass had been broken out of the window. The opening was large enough to admit a man's body. There were fragments of glass both inside and outside the building. A heavy metal container or basket for carrying four gallons of milk was found on the walk immediately in front of the broken window. There were fragments of glass in the container.

A number of bottles containing prescription drugs which were on a shelf when the store was closed the night before were missing. The missing articles were found in a carton on the floor of the Pontiac automobile behind the right front seat occupied by the defendant Cobb. The drug items were identified at the trial as being the property of the owner of the store and as having been stolen from the store.

The GTO Pontiac was a two-door sports model with bucket seats in front. To permit a person to leave or enter the back seat, one of the side doors had to be opened and then the back of the front seat pushed forward. If the door was not opened first, the back of the front seat when pushed forward would strike and get caught on the door handle.

The defendants Cobb and Greer were the only witnesses for the defense. Their testimony tended to show that they and two other men left Kansas City for Jefferson City in two automobiles at about 8:30 p.m. on the day before the burglary was committed. The men were accompanied by four girls, two of whom were students at Lincoln University. After they arrived in Jefferson City, they spent some time at a cafe drinking 3.2 beer since the students were not required to check into the University until midnight. On the return trip to Kansas City, the occupants of the GTO Pontiac were the defendants Greer and Cobb, Herbert Horton, and Courtney Bell who was referred to as a sixteen-year old girl.

According to the testimony of Cobb and Greer, horton was driving the GOT, Greer was on the right side of the front seat, and Cobb and the girl were in the rear seat. Cobb testified that he did not know what time they left Jefferson City, that he went to sleep shortly thereafter and was aware of nothing that happened until he was awakened by lights of the patrol car flashing on the stalled GTO in Sedalia and Horton saying that everybody must get out.

Greer testified that he, too, fell asleep on the return trip but that Horton awakened him in Sedalia and told him he was going to look for a girl he knew there. Greer went back to sleep and after an hour or two Horton again awakened him and asked for money to get sandwiches and coffee. They were at a filling station and Greer went in and relieved himself, returned to the car, again fell asleep, and the next time he woke up was when the officers told him to get out of the car. Greer denied that he was the driver of the Pontiac and testified that the car belonged to a friend of Horton's but the testimony as to ownership was quite vague and uncertain.

The defendant Cobb testified that he was twenty-seven years old at the time of the trial. It is not a vital factor in the case, but there is some indication in the record that Horton and the girl, as well as Greer, were under seventeen when the crime was committed.

The appellant contends that the state failed to prove that he burglarized the store or that he aided or abetted or associated himself with the venture in any way and, therefore, the verdict and judgment are contrary to the evidence and against the greater weight of the credible evidence. He relies mainly on State v. Irby, Mo., 423 S.W.2d 800, for the proposition that something more than mere presence at the scene of the crime must be shown in order to convict; on State v. Castaldi, Mo., 386 S.W.2d 392, for the proposition that evidence that the accused had an opportunity to commit a crime or which merely raises a suspicion or gives rise to conjecture is insufficient to support a judgment of conviction; and on State v. Bulter, Mo., 310 S.W.2d 952, for the proposition that some form of affirmative participation must be shown. These rules are well recognized but more than mere presence and an opportunity to commit the crime are involved in this case.

The presence of the accused at the place of the commission of a criminal offense may be considered along with other incriminating evidence to determine if the total circumstances raise a reasonable inference that the accused was a participant or an aider or abettor in the crime. State v. Ramsey, Mo., 368 S.W.2d 413, 418(9); State v. Castaldi, Mo., 386 S.W.2d 392, 395(2). Evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction. State v. Butler, Mo., 310 S.W.2d 952, 957(7); State v. Ramsey, Mo., 368 S.W.2d 413, 418(9).

The defendant argues, however, that the evidence merely shows that he was a passenger with three other persons in the automobile seen leaving the vicinity of the burglarized store and containing the stolen merchandise, and that the evidence shows he was asleep at all times while the group was in Sedalia until awakened by red lights flashing. Even in cases where the evidence is wholly circumstantial, the evidence tending to support the verdict must be considered as true, contrary evidence must be disregarded, and every reasonable inference in support of the verdict must be indulged. State v. Webb, Mo., 423 S.W.2d 795, 799(6); State v. McGlathery, Mo., 412 S.W.2d 445, 447(2); State v. Bayless, 362 Mo. 109, 240 S.W.2d 114, 118--119(1). For present purposes we must disregard entirely the testimony of Cobb and Greer that Cobb was asleep at the time the burglary and stealing occurred.

The bulk and nature of stolen property has a bearing on the manner in which it may be possessed. Fourteen bottles of prescription drugs in a cardboard box identified as the property stolen were found in the GTO Pontiac. The bottles almost filled the carton. In State v. Prunty, 276 Mo. 359, 208 S.W. 91, 94--95, this court stated that 'the character of the possession is determined by the kind and character of the property. In order to raise the presumption, it is not always necessary to show actual manual possession. Some things are not capable of being carried in one's pocket. The traveling bag in question was not.' The opinion gives further examples from other cases.

The possession of recently stolen property which will support an inference of guilt may be a joint possession of the accused and others and such possession need not be separated from all possession by others. State v. Webb, Mo., 432 S.W.2d 218, 222(5, 6); State v. Webb, Mo., 382 S.W.2d 601, 604(4--6); State v. Jordan, Mo., 235 S.W.2d 379, 383(10); State v. Oliver, 355 Mo. 173, 195 S.W.2d 484, 486(6, 7); State v. Conley, Mo., 238 S.W. 804, 806(3, 4); State v. Kehoe, Mo., 220 S.W. 961, 964(3); State v. Prunty, 276 Mo. 359, 208 S.W. 91, 95(3, 4); State v. Baker, 264 Mo. 339, 175 S.W. 64, 68(8).

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