State v. Deiter

• Decision Date: 10 November 1969
• Docket Number: No. 54444,No. 2,54444,2
• Citation: 446 S.W.2d 609
• Parties: STATE of Missouri, Respondent, v. James A. DEITER, Appellant
• Court: Missouri Supreme Court

Page 609

446 S.W.2d 609

STATE of Missouri, Respondent, v. James A. DEITER, Appellant.

No. 54444.

Supreme Court of Missouri, Division No. 2.

Nov. 10, 1969.

John C. Danforth, Atty. Gen., Thomas L. Patten, Asst. Atty. Gen., Jefferson City, for respondent.

Grace S. Day, St. Joseph, for appellant.

PRITCHARD, Commissioner.

Appellant, alleged to have committed two prior felony offenses, was charged and convicted by the jury of the crime of burglary in the second degree (under the 'accessory before the fact' statute, § 556.170, RSMo 1959, V.A.M.S.). During the course of the trial and before the submission of the case to the jury, the court read a stipulation that appellant had been convicted of the crime of forgery in 1963, and in 1966 had been convicted of the crime of burglary in the second degree, for each of which convictions he was imprisoned in accordance with the sentences in the Department of Corrections of Missouri. Counsel for appellant stated that the stipulation was correct, and the court stated, 'All right, that takes care of that part of it then.' The case was submitted to the jury for a finding of guilt or innocence on the burglary charge. Upon hearing and overruling of the motion for new trial, the court adjudged that appellant had two previous convictions, that he was found guilty of the instant offense and fixed punishment at five years imprisonment in the Department of Corrections.

Several of appellant's points repetitively attack the submissibility of the state's case, and they will be treated together. Point I is that the court erred in refusing to direct a verdict in favor of appellant when the testimony presented was that of accomplices, and there was no corroboration of the commission of the crime; Point IV states that there was no proof that (accomplices) Danny Wolfe or Gary Lynn Peek had committed a crime, and (the jury) could not determine if appellant did wilfully and feloniously aid, abet and assist them to commit a felony; Point XIII is that the state failed to establish the elements of crime necessary to find appellant guilty of aiding, abetting or assisting in the commission of a burglary; and Point XVII states that the court erred in failing to direct a verdict of acquittal on the basis that the state failed to prove that appellant had any knowledge of the commission of any crime, and failed to prove that he did aid, abet or assist therein, 'and that the only evidence presented was that defendant was in the automobile which arrived at the scene, which did not prove the elements of the crime charged in the Information, all to the bias and prejudice of the defendant.'

On October 23, 1967, Cecil Kellison, a former employee of the Prawitz-Bayer Repair Shop in St. Joseph, Missouri, packed up Larry Clapsaddle and appellant, James Deither, on a street of that city and drove thence to the Rawhide Inn in Wathena, Kansas. There the three met Gary Peek and Danny Wolfe, and the five of them sat down at a picnic table and proceeded to consume a considerable number of pitchers of beer. Wolfe was seated across from Kellison and the two of them were talking about breaking into the Prawitz-Bayer building. They agreed to it while all five were sitting around the table. They then left, drove around St. Joseph for a time and stopped at the Trax Filling Station inside of which Kellison and Wolfe (alone) talked further about breaking into Prawitz-Bayer. They chased some other 'kids' who had made remarks to them, but the police broke that up. They then went straight to the Prawitz-Bayer building and stopped behind it in the alley. Kellison told the four others to stay in the car and he got out and tried the north window, which he found to be locked. He went to the south windows and found them also locked. He heard glass break, ran back to the north side of the building where he saw Peek and Wolfe (who had a shoe in his hand) standing at the window. Clapsaddle and appellant were then still sitting in the car. Kellison saw that the window was broken so he opened it and went inside directly upstairs where the paint spray guns were kept. He took three of them, gave them to Peek who put them in the car. He told Peek there was no money in the safe. Kellison did not see appellant at the time as the car was not visible from his position.

Kellison then looked inside the building to see if there was anything else he wanted, but there was not. He left and got inside the car and saw only Clapsaddle therein. He asked Clapsaddle where Peek was and he answered that he was in the building. Kellison went back inside to get Peek and Wolfe, at which time the police arrived. With Peek and Wolfe behind, Kellison ran down the passageway between the buildings and an officer caught Kellison in front of the buildings. Kellison never saw appellant at all during these happenings.

On cross-examination, Kellison testified that he was the moving party in the incident, it was more or less his idea, the car was his, and he was driving it. At the table in the Rawhide Inn appellant could not have heard the conversation unless he was listening. Everybody was talking about different things and appellant was talking to someone else at the time. Kellison could not say that appellant heard it; he was not a participant at all in the conversation. There was no further conversation after Kellison and Wolfe got back into the car at the Trax Filling Station until they arrived at Prawitz-Bayer. He did not tell appellant to be a lookout in the car; appellant had nothing to do with the planning, and he did not get out of the car, or do 'anything that would implicate (sic) that he had any knowledge of this crime.'

Lawrence Clapsaddle testified that after he and appellant were picked up by Kellison and went to the Rawhide Inn, Kellison, Peek, Wolfe and appellant had a discussion in which something was said about breaking into a grocery store. Clapsaddle took part in that conversation 'a little bit.' They left the Rawhide Inn, got gasoline at the Trax Filling Station, followed 'some guys,' then pulled into an alley behind 'Mary Ann's' (apparently near Prawitz-Bayer). Kellison, Peek and Wolfe got out of the car and went into a passageway. Appellant was then sitting in the car. A window was broken and Kellison (shortly) came out of the passageway with three spray guns and threw them into the back seat of the car, but then opened the door, got the spray guns out of the back seat and put them in the trunk. Kellison then went back into the passageway. Appellant opened the door, got out and went behind the car. Clapsaddle did not know where appellant went, and did not see him again. The next thing that happened was that somebody 'hollered 'bust" (Clapsaddle thought it was appellant) and Clapsaddle 'took off running.' He did not know whether appellant was in the building.

On cross-examination, Clapsaddle testified that while they were sitting in the Inn there was no conversation about breaking into the Prawitz-Bayer building, nor was there any such (specific) discussion when they were driving around. When they pulled up at Prawitz-Bayer, Kellison got out saying that he wanted to go to the bathroon. Peek and Wolfe got out of the car and when they were in the passageway (between the buildings) they had a conversation about the money. Appellant was not with them at that time. At the time Kellison took the spray guns from the back seat and put them in the trunk, Clapsaddle asked appellant what was going on, and appellant answered that he did not know and got out of the car.

Rubie Williams, who lived next door to Prawitz-Bayer, heard a noise and voices in the back on the evening of October 23, 1967. She looked and saw two men at the Prawitz-Bayer north window, and inside the building. She called the police and saw them chase one man between the buildings, 'and then one run from the back of my garage, across my lot and hid behind a big white truck.' The man ran from the area where they were going in the window of Prawitz-Bayer. She watched for quite awhile and the police did not go over (to the truck) so she called them again. Then the police went over there and got the man out from under the truck. Mrs. Williams did not know who the man was and could not make an identification of him.

Officer John Davis saw appellant underneath the truck at about 11:00 p.m. 'We ran to the truck. There was a man hiding under the truck, back in front of the rear wheels. He was under the bed. We pulled the man out, frisked him, cuffed him, and took him back over here and Officers McDowell and Jones then took him to the station while we were busy with the rest of the individuals there at the scene.' The man was about seventyfive feet from the building.

It was not necessary that the testimony of the accomplices, Kellison and Clapsaddle, be corroborated. State v. Penn, Mo., 413 S.W.2d 281, 282, quoting State v. Harris, Mo., 295 S.W.2d 94, 95 so holds: 'Their testimony was credible, was uncontradicted, and was 'such that reasonable minds might believe it. '' See also State v. Gridley, Mo., 353 S.W.2d 705, 706(1, 2); and State v. Brim, Mo., 339 S.W.2d 775, 780(4). There was proof by the direct testimony of Kellison that Danny Wolfe and Gary Lynn Peek participated in breaking into the Prawitz-Bayer building and, as below developed, there was proof from which the jury could find that appellant aided, abetted and assisted in that crime.

Appellant was present at the picnic table when the burglary of the Prawitz-Bayer building was discussed between Kellison and Wolfe. There is, of course, no direct evidence that appellant heard the conversation and agreed to it. But appellant did accompany the four...