State v. Costello, 37667

• Decision Date: 28 December 1976
• Docket Number: No. 37667,37667
• Citation: 546 S.W.2d 22
• Parties: STATE of Missouri, Respondent, v. James COSTELLO, Appellant. . Louis District
• Court: Missouri Court of Appeals

Page 22

546 S.W.2d 22

STATE of Missouri, Respondent, v. James COSTELLO, Appellant.

No. 37667.

Missouri Court of Appeals, St. Louis District.

Dec. 28, 1976.

Robert A. Hampe, St. Louis, for appellant.

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

ALDEN A. STOCKARD, Special Judge.

Appellant, James Costello, waived his right to be tried by a jury and was found guilty by the court of operating the automobile of Cora Hayes without her permission in violation of § 561.175 RSMo 1969, and was sentenced to the custody of the Department of Corrections for a term of five years. We affirm.

On November 20, 1974, Cora Hayes parked her white over blue 1966 four door, six cylinder Oldsmobile in front of her residence at 4946 St. Vincent in the City of St. Louis. About an hour later she discovered that it had been taken. She had given no one permission to use it.

On December 10 Police Officer Liggett stopped the Hayes automobile while it was being driven by appellant. The bottom part which had been blue had been painted black, and the lock on the right front door had been punched out. Appellant told Officer Liggett that the automobile belonged to his brother who had owned it for about a year, and that he did not know why his brother did not have a city license for the automobile. The 'vehicle I.D. number' plate on the door of the automobile appeared to have been 'tampered' with, and subsequent investigation disclosed that the number on the door plate did not correspond with the manufacturer's number located on the frame of the automobile. There was a key in the ignition but it would not open the lock on the left front door, and there was no key to the trunk.

Appellant offered in evidence what was identified as a Missouri Certificate of Title issued to Ollie Costello, appellant's brother, dated July 15, 1974, for a 1966 Oldsmobile, four door, six cylinder automobile with a manufacturer's number identical to that contained on the plate of the door of the Hayes automobile when it was recovered.

Appellant testified that on the morning of December 10, 1974, he was taking his brother to work when the police stopped him. The record does not disclose whether this brother was Ollie Costello. Appellant testified that his brother, presumably Ollie, was in California, and that his brother and mother had sent the certificate of title to him from California. He also stated that 'his brother' was in St. Louis when he was arrested, and that although his brother knew appellant had been arrested, appellant had not told him the reason for the arrest.

Appellant's only contention on this appeal is that the evidence was 'insufficient to prove criminal intent' on his part.

In State v. McLarty, 414 S.W.2d 315 (Mo.1967), it was held that criminal intent is an essential element of the offense of tampering with an automobile, and in State v. Tate, 436 S.W.2d 716, 718 (Mo.1968), it was stated that 'For the reasons set forth in the McLarty case that criminal intent is an essential element of the crime of tampering with a motor vehicle, criminal intent is also an essential element of the crime of driving, operating and using a motor vehicle without the owner's permission.'

Appellant cites State v. Drane, 416 S.W.2d 105 (Mo.1967); State v. Edmonson, 309 S.W.2d 616 (Mo.1958); and State v. Tate, supra. Each of these cases pertains to whether the failure to submit the issue of criminal intent to the jury resulted in the failure of the court to instruct upon all questions of law. See Rule 26.02. However, this case was tried by the court without a jury, and other than establishing criminal intent as an essential element of the offense, they are not particularly helpful.

Intent is usually not susceptible of direct proof but may and generally must be established by circumstantial evidence. State v. Chevlin, 284 S.W.2d 563 (Mo.1955); State v. Beckemeyer, 423 S.W.2d 687 (Mo.1968); State v. McCreary, 504 S.W.2d 132 (Mo.App.1973). In determining the sufficiency of the evidence to support a conviction, the evidence must be viewed in the light most favorable to the State, and we accept all substantial evidence and legitimate inferences fairly deducible therefrom which tend to support the judgment, and we reject contrary inferences. State v. McCreary, supra. Also, the trier of fact is...