State v. Davis

• Decision Date: 13 May 1963
• Docket Number: No. 1,No. 49568,49568,1
• Citation: State v. Davis, 367 S.W.2d 517 (Mo. 1963)
• Parties: STATE of Missouri, Respondent, v. Sylvester DAVIS, Appellant
• Court: Missouri Supreme Court

Page 517

367 S.W.2d 517

STATE of Missouri, Respondent, v.Sylvester DAVIS, Appellant.

No. 49568.

Supreme Court of Missouri, Division No. 1.

May 13, 1963.

Thomas F. Eagleton, Atty. Gen., Jefferson City, Timothy G. Noble, Sp. Asst. Atty. Gen., Clayton, for respondent.

COIL, Commissioner.

A jury convicted Sylvester Davis of attempted burglary in the second degree and the trial judge found that he had been priorly convicted of two felonies as charged and sentenced him to five years in the state penitentiary.SeeSections 560.070,556.150,556.280, and560.095, RSMo 1959 and V.A.M.S. Davis appealed but has filed no brief.We shall examine the seventeen assignments of error in his motion for new trial.

Defendant's complaint in assignment 7, that the trial court erred in refusing to enter a judgment of acquittal at the close of the state's evidence, was waived when he adduced evidence in his behalf.State v. Truster, Mo., 334 S.W.2d 104, 107.

Defendant's new trial averment 8 challenged the sufficiency of the evidence to support the verdict.In determining that question, we consider the evidence and the reasonable inferences therefrom from a standpoint favorable to the state and disregard the evidence and inferences to the contrary.State v. Watson, Mo., 350 S.W.2d 763, 766.So considered, the evidence tended to show that the owner of a drugstore and merchandise located therein, at 2607 Cass Avenue in St. Louis, secured those premises about 10:30 p. m. on December 20, 1961, went to a lot at the store's rear where she obtained her automobile, and in its headlights observed that there was no hole in the rear brick wall of the building.The store's burglar alarm sounded in the office of the operating company at 1:37 a. m., whereupon the person in charge immediately called the police.Shortly thereafter, one police car approached from the rear of the building where one officer got out and the other drove to the front of the store where he saw two men standing near the front of the store just west of a gangway which ran from the front to the rear.In the meantime, another police car had approached so that the front of the drugstore was in the beam of its headlights and one of the officers saw two men come from behind a telephone booth located at the west side of the drugstore just east of the gangway.One of those men was the defendant, Sylvester Davis.Further examination disclosed that a hold had been made in the building's rear brick wall.The opening was about two feet in diameter at its exterior, tapering to three or four inches where it entered the building.Several tools were lying in the vicinity of the hole.A reddish substance was observed on some of the clothing of the defendant.Examination of certain items by the police laboratory disclosed that some reddish colored dust on the knee of the pants worn by the defendant and found on a portion of a pick (one of the tools) was dust from the same type of brick as a brick which had been dislodged from the wall of the building.

It is apparent from the foregoing statement that a jury reasonably could have found that defendant attempted by means of making a hole in the wall to break into and enter the drugstore in question in which there was valuable merchandise with the intent to steal or commit some other crime therein, and, if so, defendant was guilty of attempted burglary in the second degree as charged.Sections 556.070 and 556.150, supra.

Defendant claims in assignment 11 that the trial court erred in overruling his objection to the closing argument of the state's attorney 'to the effect that he thought the defendant was guilty' on the ground that such invaded the province of the jury and improperly stated counsel's personal belief as opposed to what the evidence showed.The argument of counsel for defendant is not included in the transcript.Apparently he had argued that the assistant circuit attorney was attempting to 'railroad'the defendant and was intentionally trying to put an innocent man in the penitentiary, and in retaliation the assistant circuit attorney said, among other things, 'Just as counsel for the defense is certain we are attempting to railroad this man, I assure you with all the sincerity and candor at my disposal, that we are attempting to prosecute a guilty one----,' whereupon counsel for defendant interposed: 'I object to comment by counsel of any assumption----.'The remark was withdrawn but defense counsel suggested that with drawal did not cure the assumption that the man was guilty and he requested that counsel be admonished.The objection and the request were overruled.

It is apparent from the portion of the record quoted above that we are unable to know what the full remark of the assistant circuit attorney would have been had he been permitted to continue and finish his sentence.Certainly we may not say, upon the record before us, that he expressed his personal opinion that the defendant was guilty unrelated to what the prosecutor contended the evidence showed.

Assignment 13 is that the trial court erred in permitting a police officer to testify over defendant's objection concerning the circumstances of defendant's arrest after consulting a police report made by another officer, thus indicating that the witness's testimony was based on hearsay.There is no merit in this contention.The record shows that the only matters as to which the witness refreshed his recollection from a police report written by another were as to the time and place of the occurrence and perhaps some other details.The testimony elicited from the witness, viz., that he saw the two men, one of whom was the defendant, come from behind the telephone booth as the police car in which witness was riding approached the building, was based upon the officer's personal observation and not upon anything contained in the police report of another.

Defendant complains in assignment 14 that the trial court erred in giving instruction 1 for seven stated reasons.Four of the assigned reasons, viz., that the instruction assumed disputed facts and was therefore highly prejudicial, was confusing and misleading (particularly when read with the other instructions), included prejudicial abstract statements of law and omitted necessary findings, and gave the jury a roving commission to find the defendant guilty, are too general to have preserved any matter for appellate review.S.C. Rule 27.20, V.A.M.R.

Appellant contends further that instruction 1 was not supported by substantial evidence.The instruction required, in substance, the jury to find (among other things) beyond a reasonable doubt that Davis attempted to break into and enter...