State v. Farmer, 57609
| Decision Date | 12 February 1973 |
| Docket Number | No. 57609,No. 1,57609,1 |
| Citation | 490 S.W.2d 72 |
| Parties | STATE of Missouri, Respondent, v. Jack FARMER, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Allan Seidel, Asst. Atty. Gen., Jefferson City, Attorneys for Respondent.
Vernie R. Crandall, Freize & Crandall, Carthage, Attorney for Appellant.
Defendant, with a prior conviction of carrying a concealed weapon, upon which the second offender act was added to the charges, appeals from his conviction of second degree burglary and stealing. 1 His single contention is that 'the evidence did not establish a submissible case for the jury under the theory that the possessor of recently stolen property is presumed to be the thief.'
At 2:30 a.m., February 25, 1971, officer Spencer of the Nevada, Missouri police force discovered the padlock had been broken on the door to the American Legion building. The police found no one inside but 'everything was disturbed behind the counter.' There was no showing what, if any, property was missing.
The police had several times that evening seen Don Owens, whom they knew, driving his car, a 1960 Pontiac 4-door sedan. Once was around 11:00 or 11:30 p.m., near the American Legion, and once around midnight on the city square. They also saw someone else in the front seat and someone in the rear, but could not tell who they were.
After the American Legion break-in was discovered, the police decided to stop the Owens car. It was next seen by officer Spencer, around 2:45 a.m., proceeding north on U.S. 71. He followed and stopped it outside the city limits. Owens was driving. A man named Wayne Stanart was in the front seat. Defendant was lying in the back seat, 'intoxicated', but not 'drunk', although he appeared 'passed out'. In the back seat and on the back seat floor were loose beer cans, cigars, beer in cartons, packages of cigarettes and a plastic bag containing cigarettes, beer and sandwiches. In addition, on the floor was a cash register, upside down, size and weight not shown.
The three men were arrested and taken to the police station, where the police inspected the cash register. It contained $81.00 in bills, a few checks, and some keys. One of the checks was to the Nevada 66 service station, which is located in Nevada on U.S. 71 highway toward the north. Officer Bliss was sent to the station. He found the door ajar, broken open, and inside was a cash register lid, the lid of the cigarette machine, and the coin drawer from the cigarette machine. The service station operator identified the cash register and said it had contained $81.00 in bills when he locked the station that night, time not stated.
The record is silent as to the ownership of the beer, cigars, cigarettes or sandwiches which the police found in the back seat of the Owens car or whether any such items were missing from the filling station. Defendant was charged with breaking into the service station and stealing the cash register and the $81.00.
The only evidence which can be claimed to connect defendant with the burglary of the service station and the stealing of the cash register is the cash register itself, found upside down on the floor of the back seat of the Owens automobile. There is no testimony in the record that defendant or anyone else or the Owens car had been seen at or near the service station that night. There is no testimony as to when defendant entered the automobile or that he was one of the men seen in the car earlier in the evening, although the police had known defendant for years; no testimony as to when the cash register was put in the car or who put it there or its size or weight. No burglary tools were found in the car. It is not shown when the service station was broken into, except that it and the American Legion building were intact when officer Spencer made his 11:00 p.m. check. Although the arrest occurred outside the city limits, no assertion was made by the police, nor by the state on this appeal, that there was any attempt at flight.
In our opinion, the evidence is not sufficient to sustain the conviction. Defendant was not the owner or driver of the automobile and there is no evidence he exercised any control over it. There is no indication he alone had access to the rear seat. Unlike State v. Cobb, 444 S.W.2d 408 (Mo. banc 1969), relied on by the state, the defendant was not apprehended leaving the scene of the crime, in a rapidly accelerting car with the lights off, with the police close behind. In the Cobb case, 444 S.W.2d l.c. 414, the defendant '. . . was shown to have been at the scene of the crime and had an opportunity to commit it in addition to being a passenger in the car transporting the stolen property . . .' Not so here. T...
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State v. Arnold, 59894
...the present case. There is no doubt but that defendant was at the scene of the crime immediately after its commission. See State v. Farmer, 490 S.W.2d 72 (Mo.1973), where such continuity was not shown and for that reason the evidence was held insufficient to make a submissible Appellant arg......
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State v. Gonzales
...another, there must, at least, be some other evidence more than mere possession connecting the defendant with the offense. State v. Farmer, 490 S.W.2d 72, 74 (Mo.1973); State v. Webb, 382 S.W.2d 601, 604(4) (Mo.1964); State v. Mesmer, 501 S.W.2d 192, 195(3) (Mo.App.1973); 12 C.J.S. Burglary......
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State v. Parsons
...State v. Dodson, 641 S.W.2d 115, 118 (Mo.App.1982) (citing State v. Schleicher, 458 S.W.2d 351, 353 (Mo. banc 1970); State v. Farmer, 490 S.W.2d 72, 74 (Mo.1973); State v. Cobb, 444 S.W.2d 408, 414 (Mo. banc 1969)). Conversely, courts have held that unexplained joint possession of stolen pr......
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State v. Miller, 36481
...195 S.W.2d 484 (1946); State v. Mesmer, 501 S.W.2d 192 (Mo.App.1973); State v. Cobb, 444 S.W.2d 408 (Mo. banc 1969), and State v. Farmer, 490 S.W.2d 72 (Mo.1973). State v. Farmer supports appellant's, not the State's, position. Farmer was found in the back seat of an automobile driven by Ow......