State v. Everett
| Decision Date | 12 January 1970 |
| Docket Number | No. 54381,No. 2,54381,2 |
| Citation | 448 S.W.2d 873 |
| Parties | STATE of Missouri, Respondent, v. Charies EVERETT, Jr., Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., John C. Craft, Asst. Atty. Gen., Jefferson City, for respondent.
Dudley C. Dunlop, Clayton, for appellant.
PRITCHARD, Commissioner.
Appellant was convicted by the verdict of a jury of stealing property over the value of $50.00. The jury assessed punishment at imprisonment in the Department of Corrections for eight years, but in sentencing appellant the trial court reduced the term to five years imprisonment, with credit being given for time previously spent in jail.
Appellant here attacks the sufficiency of the evidence (and its admissibility) to sustain his conviction in three principal aspects: There was no showing of criminal intent in that appellant did not participate in the theft other than his driving to the scene; and evidence that the value of the property allegedly stolen was over $50.00 was insufficient, as was the evidence of the chain of possession thereof. These contentions are reiterated in challenges, respectively, made upon Instructions Nos. 5 and 1, it being said that there was no evidence to support the giving of these instructions.
The indictment charges that appellant, Charles Everett, Jr., Toney Mason and Jackie Barnett unlawfully and feloniously stole numerous items of personal property of Bruce C. Bogart of a value of $171.50.
On December 21, 1967, Richard Dale Mace, a police officer of the City of Berkeley, was on duty and was working as a 'stakeout' on the 6:00 p.m. to 2:00 a.m. shift. He was seated in an unmarked police car parked at the corner of Bessemer and Brown streets. Previously he had driven through the Ramada Inn parking lot at Brown Street and Natural Bridge and observed a 1964 Chevrolet with a California license parked on the west side of the Inn. He observed clothing on a hanger and several packages on the rear floor of the rear seat. From his vantage point fifty or sixty yards away from the Chevrolet, and with the aid of binoculars and illumination by lights in the parking lot, he had a very good view of the area. He observed an old model Chrysler occupied by three Negro men driving slowly toward the parked car, and it pulled in on the north side of the Chevrolet and parked. One of the men, who was seated in the right front of the Chrysler, alighted and looked around. Appellant, being identified later, was driving the Chrysler. The man who had gotten out of the front seat appeared to be doing something to the window or door of the Chevrolet, the door of which came open and the dome light came on. The man started taking packages from the car and passed them to someone seated in the right rear seat of the Chrysler. Mace then drove to the parking lot and behind the Chrysler, got out, identified himself as a police officer and placed the three men under arrest, advising them that they had a right to remain silent, that anything they said could be used against them in a court of law, that they had a right to have an attorney before and at the time of any interview or interrogation, and that if they could not afford an attorney one would be appointed.
Mace searched the men and removed a screwdriver from the man who had opened the door of the Chevrolet. He observed numerous packages wrapped in Christmas paper in the left rear seat of the car appellant had been driving. Captain Bogart then came to the scene and at Mace's request looked into the back seat of the Chrysler to see if there was anything which belonged to him or which had previously been in his car. Photographs were taken of the Chrysler with its left rear door ajar showing the Christmas packages on the seat. Captain Bogart removed the packages and took them to the police station where they were again photographed on the floor. Mace saw appellant watching Mason as he took the packages out of the Chevrolet and passed them to the Chrysler.
Captain Bogart, of the United States Air Force, and his wife were traveling from West Lafayette, Indiana, to his parent's home in Topeka, Kansas, on December 21, 1967. They stopped at the Ramada Inn motel at Natural Bridge and Brown streets, leaving Christmas presents in the back seat of their locked car. During the evening he heard some noise in the parking lot of the motel, looked out and saw a police car and his own car with its door open and the inside light on. Captain Bogart went to his car and found most of his Christmas presents in the back seat of a car next to his Chevrolet. Three Negro men were at the scene, appellant being recognized by him in court as being one of the men. Captain Bogart helped to remove the packages from the car and to carry them to the police station where they were photographed. He had wrapped several of the packages and had a couple of them wrapped at the store when he purchased them. The following items were in the packages and were purchased by Captain Bogart for Christmas gifts, starting about the middle of November up to about the middle of December, 1967, at various stores in and around Lafayette, Indiana, and in military post exchanges: State's Exhibit 4, a carving knife at a cost of $15.00; State's Exhibit 5, a set of four books costing $4.50; State's Exhibit 7, a robe costing about $14.50; State's Exhibit 8, a volume of Goren's Bridge costing $6.00; State's Exhibit 9, a sweat shirt costing $3.00; State's Exhibit 10, a banlon shirt costing $4.50; State's Exhibit 11, a perfume and powder set (purchased by Mrs. Bogart in Captain Bogart's presence) costing $5.00; and State's Exhibit 12, after-shave lotion costing $2.85. There was also a banlon shirt and sweater, State's Exhibit 6, which Mrs. Bogart purchased and gave to her husband as a Christmas present, which he valued, based upon his knowledge of values and prices of like items in stores, at $35.00. Captain Bogart placed a value of $5.00 on a banlon shirt (State's Exhibit 13) he had given to his brother, and a $7.50 value on a sweater, State's Exhibit 14.
After the packages were photographed, Captain Bogart took them home from the police station and gave them out as Christmas presents. Upon request of the prosecuting attorney's office he sent them back by mail, marking the two boxes as to what the items were and the approximate price.
Captain Bogart could not specifically identify many of the gifts as being exactly the same as the ones he purchased, but did testify that they were similar to and of the same type. Appellant's objection to the admission of the items into evidence was that the chain of possession was not shown, and that the values had not properly been established by the witness.
On cross-examination Captain Bogart pointed out the packages in which the Christmas presents were, and testified that he had begun purchasing them about the middle of November. After he had given them out he began to gather them back about the middle of February, receiving them within a week. He mailed them in two boxes toward the end of February to the prosecuting attorney.
Jackie Barnett testified for appellant: He was present at the Berkeley Police Station on the night of December 21 between 11:00 and 12:00 o'clock when a conversation occurred in the presence of Captain Bogart, Lieutenant Carter, Toney Mason and appellant. Mason said that he had committed a theft of which appellant and Barnett had no knowledge, and that he had paid appellant to bring him out to the motel. Carter asked Mason if he was admitting the charge, and Mason said 'Yes.' Appellant did not make a statement, and was not questioned, at the time, concerning his involvement in the theft. On cross-examination Barnett testified that he was convicted in 1967 for stealing over $50.00, and was convicted of other crimes 'numerous of times'; in 1961, illegal sale of narcotics; a year in the workhouse in 1966 for stealing; stealing in 1965; larceny from a person in 1964; and stealing in 1957 and 1956. Appellant drove the car on the evening of the instant theft, with Barnett in the rear seat and Mason in the right front.
Toney Mason testified that he was a codefendant with appellant in this case, in which Mason pleaded guilty two days before this trial. He had not yet been sentenced. He was present in the Berkeley Police Station on the evening of his arrest and admitted to Captain Bogart that he had broken into his car; that he had told appellant to bring him out there, and that appellant and Barnett did not know anything about it. Appellant told Captain Bogart he did not have anything to do with it. Prior to coming to the Ramada Inn, Mason did not tell appellant anything about having any intention to steal anything from a car. He paid appellant about $8.00 to drive him. In appellant's presence, Mason said to Captain Bogart, 'don't prosecute us, what do you want to prosecute us for because we will pay for any damage to your car.' Ap...
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