State v. Ewing

• Decision Date: 11 February 1957
• Docket Number: No. 1,No. 45579,45579,1
• Citation: 298 S.W.2d 439
• Parties: STATE of Missouri, Respondent, v. Kenneth EWING, Appellant
• Court: Missouri Supreme Court

Page 439

298 S.W.2d 439

STATE of Missouri, Respondent, v. Kenneth EWING, Appellant.

No. 45579.

Supreme Court of Missouri, Division No. 1.

Feb. 11, 1957.

J. Bernie Lewis, Ava. T. A. Shockley, Waynesville, for appellant.

John M. Dalton, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.

COIL, Commissioner.

Appellant, Kenneth Ewing, referred to herein as defendant, was convicted of burglary in the second degree as charged and sentenced to two years in the state penitentiary. On this appeal he contends that the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence.

In determining the sufficiency of the evidence to make a jury case, we consider as true the evidence favorable to the state and the favorable inferences reasonably to be drawn therefrom, and reject countervailing evidence. State v. Swindell, 357 Mo. 1090, 1094, 212 S.W.2d 415, 417. So viewing the evidence in the instant case, a jury reasonably could have found the facts to be as they appear in the statement which follows.

On August 10 and 11, 1955, Sterling Wells owned and operated a garage, service station, and used-car business and, in that connection, owned a building situated on the south side of east-west U. S. Highway 66 some undisclosed distance east of Waynesville, Missouri. Highway 66 at that place is a 4-lane, divided highway. To the north of that highway, to which we shall refer as new 66, and for some distance east of the Wells building is a portion of old Highway 66 which parallels new 66 and which may be entered at various crossovers and which joins new 66 at a place approximately opposite the east end of the Wells building.

Mr. Wells and his partner in the used-car business, Mr. Stroup, had been in Springfield on August 10 attending a used-car auction. At approximately midnight they were traveling east on new 66 a short distance west of the Wells building intending to turn into the service station drive for the purpose of Wells' checking the day's receipts; the garage and service station having been theretofore closed. They followed an old Plymouth for a short distance which, when it reached the service station drive, gave the appearance that its driver intended to turn into that drive. Wells, because he wondered about the intention of the Plymouth's driver and because his own turn was somewhat blocked by the Plymouth, decided to and did pass the Plymouth after either Wells or Stroup had written the Plymouth license number on a piece of paper. Wells then drove eastwardly on 66 for about one-half mile to the third or fourth crossover (a place where one could get from the eastbound traffic lane to the westbound lane) and then drove westwardly on 66 back to, and parked in the drive of, the service station. As they traveled westwardly neither Wells nor Stroup saw the Plymouth proceeding eastwardly on new 66.

The Wells building faced north, was about 60 feet long from east to west and 30 feet deep, and was divided into two rooms with an open door between them--the east room being occupied by the garage and the west room being a combination service station office and display room for parts, etc. There were two outside doors, both on the north side of the building; the easternmost opened into the garage and the other opened into the service station office. There were windows (an undisclosed number) across the rear of the building. As noted, the garage and service station were closed; the gasoline pump lights were off, but neon lights running along the gables and down the east end of the front of the building were on. A 'night light' over the cash register located in the service station office was on.

Wells entered the garage door with a key, went into the service station office, opened the cash register, took therefrom about $100 and put back $20 with which to begin the next day's business, checked and adjusted the adding machine tape, closed the cash register, and left the building by the same door he had entered. That door was fitted with a Yale lock which automatically locked when the door was closed. Wells, however, checked the door after he closed it and found that it was securely locked. Wells then intended to take Stroup home, a short distance west. As he turned his car in the service station drive, its lights disclosed a Plymouth parked on old 66 some distance from the north edge of new 66 and in a secluded spot. Thereupon Wells, instead of driving west on 66, drove eastwardly to the first crossover, went north to old 66, and proceeded west thereon. He and his partner saw that the parked Plymouth was the same one they had theretofore noted. They saw no one in it. Wells continued on, entered new 66, and took Stroup home. Wells then drove back eastwardly and into a driveway which led to his (Wells') home located on a hill directly across and about 300-400 feet from the garage and service station.

Wells entered his house and, upon looking out the window, thought he saw a person in the service station drive at a point north of and about even with the west end of the building. He called the highway patrol at Rolla, continuing his watch of the building. He was not sure that he saw anyone thereafter until after the patrolmen arrived. Two highway patrolmen arrived at Wells's home within five minutes. He and the two patrolmen went immediately to the south edge of the Wells yard and, when they had been looking toward the building for about 30 seconds, they saw the defendant close to (not more than one foot away), and in the attitude of leaving or walking away from, the garage door. They saw defendant hesitate there a second, then walk at a 'fast walk' eastwardly along the service station drive to some gasoline storage tanks located east of the east end of the building, again hesitate, then walk northwardly toward some used cars which were parked in the service station drive, again hesitate, and then walk northwardly partially across new 66. At that time Wells and the two patrolmen in the patrol car drove down the drive and onto old 66. By that time defendant had reached his Plymouth automobile and had started to drive away. Defendant's car was stopped and defendant questioned. Upon being asked what he was doing at the service station, he denied that he was there and then said that he had diarrhea and had gone over to the service station area to relieve himself. It was suggested that defendant show the officers the place where he had relieved himself, to which he answered that it was none of their business. (Later defendant told one of the patrolmen that it was near the storage tanks.) Thereupon defendant was placed in the patrol car and driven to the service station. Wells and one of the patrolmen went to the garage door and found it open about four or six inches with no marks or other evidence of the door having been forced or pried open in any manner. Wells and one officer went through the garage into the service station office. They examined the cash register and found some of its keys had been pushed down and that a pair of pliers which ordinarily were located in the garage were wrapped in a shop towel and were lying near. Indentations on the top edge of the cash register drawer (not there when Wells had checked the register a few minutes before) fit the end of one of the pliers' handles. The $20 which had been left in the cash register was there and nothing had been taken from the premises.

There was evidence from which the jury could find that a check showed that the other door, i. e., the one leading into the service station office, was then closed; that all the back windows were then closed; that on the floor under one of the then closed back windows was the rod which served as a locking device. That was an iron rod about 2 1/2 feet long which was supposed to fit on top of the lower sash and extend upwardly to the bottom of the molding of the top sash so that when it was securely in place the window could not be opened. No finger prints were found upon an inspection. The officers walked around the building and found no other person in the vicinity or anything else unusual. From the time they had begun to watch they had seen no other person in the vicinity of the station. The officers testified that, from the time they began watching, i. e., for the 30 seconds prior to the time they saw defendant at the garage door, if defendant had proceeded to that place from any place outside the service station they would have seen him approach and reach that point. They could not see into the station from their position in the Wells yard due to the bright neon lights on the outside of the station. They examined the area around the gasoline tanks where defendant had said he had relieved...