State v. Davis, No. 49568

CourtMissouri Supreme Court
Writing for the CourtPER CURIAM
Citation367 S.W.2d 517
Decision Date13 May 1963
Docket NumberNo. 1,No. 49568
PartiesSTATE of Missouri, Respondent, v. Sylvester DAVIS, Appellant

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.

Page 518

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. See Sections 560.070, 556.150, 556.280, and 560.095, 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.

Page 519

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...

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19 practice notes
  • Ruffin v. Dir. Nev. Dep't of Corr., 2:07-cv-00721-RLH-PAL
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • August 4, 2011
    ...under the habitual criminal acts, that a properly authenticated conviction presumes identity of person as well as name. State v. Davis, 367 S.W.2d 517 (Mo.1963); Buie v. State of Oklahoma, 368 P.2d 663 (Okl.Cr.App.1962).The division of authorities preponderates in favor of allowing the copi......
  • State v. Wrose, No. 55851
    • United States
    • Missouri Supreme Court
    • February 8, 1971
    ...as part of the offense of burglary and was not an instruction hypothesizing facts to be found by the jury. In State v. Davis, Mo.Sup., 367 S.W.2d 517, 520, we said of a similar contention: 'Defendant complains that instruction 1 was misleading and confusing in that it hypothesized that defe......
  • State v. Shumate, No. 9662
    • United States
    • Missouri Court of Appeals
    • November 20, 1974
    ...in the records of prior convictions were one and the same person. State v. Williams, 382 S.W.2d 597, 600(4) (Mo.1964); State v. Davis, 367 S.W.2d 517, 521(1) (Mo.1963). The defendant did not offer any evidence that he was not the person named in the court and prison records. That being the ......
  • State v. Ross, No. 49748
    • United States
    • Missouri Supreme Court
    • September 9, 1963
    ...sufficiency of the evidence to make a submissible case, it must be viewed in the light most favorable to the state. State v. Davis, Mo., 367 S.W.2d 517, Page 226 On March 5, 1962, an automobile ran against a drug store at 35th and Woodland in Kansas City, Missouri, breaking the front window......
  • Request a trial to view additional results
19 cases
  • Ruffin v. Dir. Nev. Dep't of Corr., 2:07-cv-00721-RLH-PAL
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • August 4, 2011
    ...under the habitual criminal acts, that a properly authenticated conviction presumes identity of person as well as name. State v. Davis, 367 S.W.2d 517 (Mo.1963); Buie v. State of Oklahoma, 368 P.2d 663 (Okl.Cr.App.1962).The division of authorities preponderates in favor of allowing the copi......
  • State v. Wrose, No. 55851
    • United States
    • Missouri Supreme Court
    • February 8, 1971
    ...as part of the offense of burglary and was not an instruction hypothesizing facts to be found by the jury. In State v. Davis, Mo.Sup., 367 S.W.2d 517, 520, we said of a similar contention: 'Defendant complains that instruction 1 was misleading and confusing in that it hypothesized that defe......
  • State v. Shumate, No. 9662
    • United States
    • Missouri Court of Appeals
    • November 20, 1974
    ...in the records of prior convictions were one and the same person. State v. Williams, 382 S.W.2d 597, 600(4) (Mo.1964); State v. Davis, 367 S.W.2d 517, 521(1) (Mo.1963). The defendant did not offer any evidence that he was not the person named in the court and prison records. That being the ......
  • State v. Ross, No. 49748
    • United States
    • Missouri Supreme Court
    • September 9, 1963
    ...sufficiency of the evidence to make a submissible case, it must be viewed in the light most favorable to the state. State v. Davis, Mo., 367 S.W.2d 517, Page 226 On March 5, 1962, an automobile ran against a drug store at 35th and Woodland in Kansas City, Missouri, breaking the front window......
  • Request a trial to view additional results

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