State v. Cox

• Decision Date: 16 April 1974
• Docket Number: No. 35290,35290
• Citation: State v. Cox, 508 S.W.2d 716 (Mo. App. 1974)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Richard D. COX, Defendant-Appellant. . Louis District. Division One
• Court: Missouri Court of Appeals

Page 716

508 S.W.2d 716

STATE of Missouri, Plaintiff-Respondent, v. Richard D. COX, Defendant-Appellant.

No. 35290.

Missouri Court of Appeals, St. Louis District. Division One.

April 16, 1974.

Clifford J. Proud, Nangle & Proud, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson

City, Gene McNary, Pros. Atty., Karl J. Keffler, Asst. Pros. Atty., Clayton, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.

SIMEONE, Acting Chief Judge.

Defendant-appellant Richard D. Cox was convicted of stealing property less than a value of $50.00 owned by Patrick Hanley of 852 Townhouse Avenue in St. Louis County. He was sentenced to serve one year in the St. Louis County jail. He appeals. We affirm.

Taking the evidence in the light most favorable to the State, a jury could reasonably find the following. During the early morning hours of May 31, 1972, at about 4:50 a.m., at a time when it was getting light, Mr. John Throgmorton, who resides at 762 Lamplight Lane in St. Louis County, thought he heard a noise in his garage. He walked to the garage attached to his home and saw 'someone coming down the street across my neighbor's lawn.' At the closest point, this person was about seven feet away. He saw that the individual was wearing a 'white sailor cap and a short blue or gray jacket.' He could not observe his facial features but could tell 'he was white,' 'young', about 5 10 tall and weighed about 150 pounds. The person had a flashlight in his hand. The person walked across the street and 'shined the light into a car sitting in a driveway.' At that point, Mr. Throgmorton called the County Police informing them that he observed a man near the '700 block of Lamplight wearing a sailor cap and a short blue or gray jacket.'

Two County Police officers, Edward D. Speakman and Charles W. Stone, each operating his own vehicle went to the area of Lamplight and Townhouse Avenues. Officer Speakman was directed to 762 Lamplight by radio dispatch at about 5:00 a.m. The dispatch indicated that a call had been received concerning a suspicious person with the above description.

Officers Speakman and Stone arrived in the area about the same time. Speakman testified he 'observed a subject ('a white male, 5--9 or so, wearing blue jacket, blue trousers and a white sailor hat') coming west on Lamplight.' When Officer Speakman saw him, the person was carrying a 'large mass in front of him,' a 'big bundle.'

The individual was seen to run between two residences on Lamplight (about two blocks from Townhouse) and Officer Speakman started chase. When the person ran between the two houses, the officer lost sight of him. But the officer saw a 'car stereo and some (two) speakers lying on the ground between halfway back of the residence and the back fence, and in the corner of the yard, I saw another pile of items including car stereos, clothing, stereo tapes and numerous other small articles. . . .' The single car stereo was lying separate from the other items.

At this point, Officer Speakman returned to his police car and put out a dispatch containing a description of the individual--'between the ages of 18 to 20, 5--8 to 5--10, 130 to 140 pounds, I believe, wearing a blue jacket, blue pants and a white sailor hat.'

Meanwhile, Officer Stone of the County Police Department saw 'a young white male walking toward me,' wearing a 'dark blue jacket, light blue or gray shirt, blue trousers and white sailor hat.' When about sixty feet apart, and while Stone was in his car, he saw the individual go between two houses on Lamplight and 'as he got into the back yard he pitched the stuff up in the air and climbed over a fence.' After he climbed the fence, he disappeared. Stone requested the County Police to send the Identification Bureau and then went around the neighborhood in search of the individual. About two and a half or three blocks away Stone came in contact with the defendant, Cox, at DeVille and Holliday Avenues in the custody of officers of the City of Hazelwood.

Before Stone arrived at DeVille and Holliday, Patrolman Eugene L. Roessler of the Hazelwood Department received a radio dispatch that the County Police were looking for a 'white male 18 to 20 years old, wearing a blue jacket and white sailor's hat.' Roessler observed an individual fitting this description at a point about six blocks from Townhouse and Lamplight. When the person in the sailor hat and blue jacket apparently saw the Roessler vehicle, he 'began to take off running.' Officer Roessler gave chase for about two minutes and finally the person stopped. The individual chased (who turned out to be the defendant Cox) stopped at DeVille and Holliday and was apprehended by Roessler. During the chase, Roessler saw the man lose his white hat about a half block before he stopped. When apprehended, he was advised that he was under arrest, 'fugitive St. Louis County.' Officer Roessler turned Cox over to Officer Stone who 'picked him (the defendant) up off the ground after he was apprehended by the Hazelwood officer.' Stone returned with the defendant to the 762 Lamplight area where Officer Speakman was. Officer Speakman then informed defendant he was under arrest, advised him of his rights and asked whether he wished to waive them. 'He (defendant-Cox) stated he did wish to give up the rights and would make a statement.' Speakman asked why he ran, and Cox replied he did not want to get caught. And when asked why he did not want 'us to catch him,' he replied that 'both he and a friend had been in the area since about 2 A.M. taking items from cars, taking items they could sell and get a little money.' ¹ Speakman also asked if the defendant could tell the officers where he took the items from. Cox replied he did not know but 'he could show us.' The defendant then left in the company of Stone, while Speakman waited for the Identification Bureau.

When the defendant and Stone left the location on Lamplight, they went to 852 Townhouse where a Chevrolet owned by Mr. Walter L. Hanley was located and there, according to Stone, 'Defendant advised me that was one of the cars he had been removing items from during the night.'

About 6:30 a.m. Mr. Walter L. Hanley of 852 Townhouse awakened and noticed that the driver's door of the 1964 Chevrolet owned by him but normally driven by his son Patrick, was standing open. He awakened Patrick and they went to investigate. The vent window was forced open and the stereo and two tapes from the glove compartment were missing. Mr. Hanley called the County Police. The stereo had been purchased by Patrick on March 24 for $69.95. The tapes had cost $10.00. The stereo was eventually returned to Patrick.

Eventually on July 10, 1972, an information was filed charging defendant Cox with stealing over $50.00. Defendant was arraigned, an amended information was filed, and on January 17 and 18, 1973, trial was held.

At trial Patrick identified the stereo by matching the serial number on the stereo and the one in his receipt book. Officer Speakman also identified the stereo as the one found on the ground on the night of May 31, as it had the same serial number.

The defendant at trial testified in his own behalf. He testified that he was arrested at the corner of DeVille and Holliday at about 'quarter to seven.' He said he had spent the night at a friend's--Mat Conely's--house, and the place where the police saw him was on the way to his house at 719 Lynnhaven Avenue in Hazelwood. At the time of trial, Conely was in the service in Munich, Germany. On that morning he was wearing a blue jacket, over a green jacket, a yellow and black shirt with white checks, gray pants, black belt and brown shoes, but he was not wearing a sailor's hat. When he saw the police, he ran because 'every time they see any of us young men out there they stop us, ask us questions, and sometimes they'll take us in.' He said that between January and May he had been arrested 'for twenty hours 58 times.' When arrested, he did not answer any questions and denied he was advised of his constitutional rights.

At the conclusion of the evidence, the court gave among others Instruction No. 3 ² which informed the jury that if they did not find defendant guilty of stealing over $50.00, but if they find that defendant stole property of a value of less than $50.00, they should assess punishment in the County Jail for not more than one year or fine of not more than $1,000.00, or both. The court also gave Instruction No. 7 ³ which informed the jury that the State has the burden to prove that the defendant was present at the time and place of the offense and if from all the evidence or lack thereof, there is left a reasonable doubt regarding the defendant's presence at the time and place of the offense, the jury should acquit.

The jury found the defendant guilty of stealing property 'under the value of $50.00' and assessed his punishment at imprisonment in the County Jail for one year. After motion for new trial was overruled, and allocution given, defendant was sentenced.

On this appeal the defendant contends the trial court erred: (1) in overruling defendant's motion for judgment of acquittal made at the close of the State's case and at the close of the evidence since there was no direct evidence pointing to defendant's guilt; (2)(a) in overruling defendant's objection to the alleged admissions made by defendant which related to crimes other than the one for whch he was charged, (b) in admitting police testimony as to the fruits of other unrelated crimes, and (c) in overruling his motion for mistrial; (3) in giving Instruction No. 3 relating to stealing under $50.00 since there was no evidentiary support for the instruction; and (4) in not instructing the jury concerning the defendant's alibi.

The appellant urges that no testimony was provided by the state that placed Cox at the scene of the alleged crime or at the...