State v. Durham
| Decision Date | 08 April 1963 |
| Docket Number | No. 2,No. 49699,49699,2 |
| Citation | 367 S.W.2d 619 |
| Parties | STATE of Missouri, Respondent, v. Donald Gene DURHAM, Appellant |
| Court | Missouri Supreme Court |
Donald Gene Durham, in pro. per.
Thomas F. Eagleton, Atty. Gen., Thomas R. Green, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
STOCKARD, Commissioner.
Defendant was convicted of burglary in the second degree and of stealing, and he was sentenced under the habitual criminal act to imprisonment for eight years for the burglary and to four years for the stealing, the terms to be served consecutively. Defendant has filed no brief in this court as appellant. He has filed pro se what he denominates to be a 'reply' to the brief filed by the State as respondent. In the motion for new trial defendant asserts that the evidence was insufficient to support the verdict, that the court erred in overruling his motion to suppress evidence, and that error resulted from an incident occurring in the courtroom.
On March 27, 1962, at the close of the business day, the manager of the Newberg Lumber Company closed the building and locked the doors. The next morning the staple had been twisted out of the hasp by which the door was locked with a padlock, the built-in lock of the door had been pried open, and various items of property having the value of $450 were missing including a chain saw, four power utility saws, two electric drills, some screw drivers, a radio and certain other items.
About four o'clock in the afternoon of March 27, 1962, defendant was at the home of Alvie Burton Hacker in Edwardsville, Illinois, and he left there with Robert Willis to drive to Newberg, Missouri. Albert Willis, a resident of Newberg, testified that at about 1:30 o'clock in the morning of March 28, he saw defendant park his 1954-Plymouth automobile about 200 feet from the back of the Newberg Lumber Company. Two men got out of the automobile and walked down the alley and defendant stayed with the automobile. While the two men were gone defendant 'acted like he had light trouble, or something.' He lifted the hood of the automobile and flashed the lights on and off. The two men returned in about thirty minutes but had nothing with them that Albert Willis could see, and after getting in the automobile they and defendant drove away. At 8:00 o'clock in the morning of March 28, defendant returned to the home of Alvie Burton Hacker. He told Hacker that he had obtained a chain saw and that he had 'paid $50 down on the saw.' Defendant got the chain saw from his automobile, which admittedly was the saw which had been stolen from the Newberg Lumber Company only a few hours earlier, and told Hacker he would leave it at his house. He also gave Hacker four screw drivers, and suggested that he, Hacker and Robert Willis attempt to solicit some tree trimming jobs. They started out in defendant's automobile with Hacker driving at defendant's request. Shortly after noon Reece H. Morgan and Gerald F. Johnson, members of the Illinois State Highway Police, stopped the automobile of defendant. Trooper Morgan stated to Hacker that he was under arrest for improperly displaying the license plate. Through the back window of the automobile Trooper Morgan saw a radio which had the price of $23.95 marked on it, and he also saw a display carton of new screw drivers lying on the seat. At the trooper's request Hacker opened the trunk of the automobile for inspection. Defendant and Robert Willis were asked to go to the rear of the automobile, and Trooper Morgan then searched the automobile for weapons to insure the safety of himself and Trooper Johnson while taking Hacker and the other two occupants of the automobile to the police station. In this search Trooper Morgan found on the floor of the automobile between the seats, but under a blanket, various items of property all of which were later discovered to have been stolen from the Newberg Lumber Company during the preceding night. On the way to the police station, defendant told Robert Willis that they would have to get rid of the screw drivers, and Willis put them under the back seat of the car where they were later found by the police. Defendant also told Hacker 'not to worry about anything at all, * * * [that he, Hacker] didn't know anything about anything, so not to worry about it.' At the police station defendant and his two companions were 'shook down,' and later Hacker took a 'lie-detector test' which confirmed his contention that he had no knowledge that the property found in the automobile, and the chain saw and screw drivers at his home, had been stolen.
Defendant testified that he had nothing to do with the burglary, and that about 7:00 o'clock in the morning of March 28 he had purchased the property which was found in his automobile, and the chain saw, from Marckum Vincent Trail at the corner of 19th and Madison Streets in St. Louis. Trail did not testify. Defendant further testified that at the time he purchased the articles Trail was living in St. Louis, 'around there in Forest Park,' but that 'through letters' he had received he had heard that Trail was living in East St. Louis. Defendant also testified that at the time of his arrest in Illinois he had with him a bill of sale which he had received from Trail, but that he had concealed the bill of sale in his boot, and he did not show it to the Illinois police because he was afraid it would 'disappear like another bill of sale did disappear.' However, he testified that he did tell the Illinois police that he had a bill of sale and that he 'would produce it at my trial.' Defendant offered in evidence a document labeled 'Bill-of-Sale' dated March 28, 1962, purportedly in the handwriting of Trail and signed by him, in which it was stated that he sold a chain saw to defendant for $75 with a payment of $20 down and $55 to be paid in 60 days, and that the remainder of the articles therein listed were to be 'sold on a 1/3 commission of whatever legal tender obtained & not to be sold for less than the total amount of $150.00.'
In his motion for new trial defendant first contends that the evidence is insufficient to support the verdict because (a) there was no 'factual evidence' that he broke into and entered the Newberg Lumber Company building or that he stole anything therefrom, (b) the bill of sale from Trail, which was not impeached and 'must be taken as true by the jury,' explained his possession of the stolen articles, and (c) the verdict is contrary to the court's instruction that possession of stolen goods alone would not, by itself, sustain a verdict of guilty. We note that defendant did not submit to the court a motion for judgment of acquittal.
The evidence in this case relied upon by the State to establish defendant's guilt is circumstantial. However, in a burglary and stealing case the State may, and frequently must, rely on circumstantial evidence. Such evidence is sufficient provided the facts and circumstances relied upon by the State are consistent with each other and with the hypothesis of defendant's guilt, are inconsistent and irreconcilable with his innocence, and point so clearly and satisfactorily to his guilt that they exclude every reasonable hypothesis of innocence. State v. Murphy, 356 Mo. 110, 201 S.W.2d 280, 282; State v. Worley, Mo., 353 S.W.2d 589, 594. The question thus presented is whether the evidence in this case fails to meet the above requirements for the reasons assigned by defendant.
It has long been the rule that an inference of guilt is permissible from the possession of property recently stolen in a burglary, and the inference exists both as to the burglary and the stealing. State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 455; State v. Oliver, 355 Mo. 173, 195 S.W.2d 484; State v. Hagerman, 361 Mo. 994, 238 S.W.2d 327; State v. Reagan, Mo., 328 S.W.2d 26. However, to authorize the inference of guilt, the defendant's possession of the stolen property should not be too remote in point of time from the crime, and it should be a personal possession, exclusive, distinct and conscious, and unexplained. "Where the character of defendant's possession is such as to fulfil these requirements, it is evidence of his guilt, connecting him with the commission of the burglary, and, in the absence of countervailing evidence, may be sufficient to sustain a conviction of burglary." State v. Watson, Mo., 350 S.W.2d 763, 766. There is no question in this case concerning the fact of the burglary, nor is there any question as to the identity of the property in defendant's possession as that stolen in the burglary of the Newberg Lumber Company. Also, defendant had the property in his possession at 8:00 o'clock on the morning of March 28, 1962, a matter of only a few hours after it necessarily had to have been stolen during the commission of a burglary. The facts and circumstances of the burglary and the stealing, the fact that defendant was present in Newberg and was seen near the lumber company at 1:30 o'clock in the morning, his admitted exclusive possession of the stolen property very recently after the burglary, and his efforts to conceal the possession of the property by hiding it under a blanket in his automobile, constituted 'factual evidence' from which it was permissible for the jury to infer that defendant participated in both the burglary and the stealing.
Defendant's contention that the bill of sale was not impeached and that it had to be taken as true by the jury is without merit. First, the circumstances under which defendant asserts that he obtained the bill of sale and acquired the stolen property,...
To continue reading
Request your trial
-
State v. Witherspoon
...1054, 19 L.Ed.2d 1154; State v. Durham, 386 S.W.2d 360 (Mo.1965), cert. den. 382 U.S. 857, 86 S.Ct. 110, 15 L.Ed.2d 94; State v. Durham, 367 S.W.2d 619 (Mo.1963), cert. den. 375 U.S. 861, 84 S.Ct. 130, 11 L.Ed.2d 89.3 Hotis states: '* * * As in all situations involving a waiver of fundament......
-
State v. McCloud
...v. Bell, supra; Goodwin v. United States, 121 U.S.App.D.C. 9, 347 F.2d 793; United States v. Owens, 7 Cir., 346 F.2d 329; State v. Durham, Mo., 367 S.W.2d 619. See also 10 A.L.R.3d 314, for a full note and collection of cases concerning lawfulness of search of a motor vehicle following arre......
-
State v. Cobb
...of burglary and of stealing. State v. Fields, Mo., 442 S.W.2d 30, 35(10); State v. Kennedy, Mo., 396 S.W.2d 595, 598(2); State v. Durham, Mo., 367 S.W.2d 619, 621(2). However, the jury determines the credibility of the defendant's explanation of his possession of the stolen property, and ev......
-
State v. Chase, 53220
...theft' and does not warrant a conviction. Cited in support of these assertions are State v. Lackland, 136 Mo. 26, 37 S.W. 812, State v. Durham, Mo., 367 S.W.2d 619, State v. Fogle, 211 Mo.App. 18, 244 S.W. 105, State v. James, 133 Mo.App. 300, 113 S.W. 232, State v. Deckard, Mo., 37 S.W.2d ......