State v. Farris

• Decision Date: 12 November 1951
• Docket Number: No. 1,No. 42558,42558,1
• Citation: 243 S.W.2d 983
• Parties: STATE v. FARRIS
• Court: Missouri Supreme Court

Page 983

243 S.W.2d 983

STATE v. FARRIS.

No. 42558.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1951.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 10, 1951.

Morris A. Shenker, St. Louis, for appellant.

J. E. Taylor, Atty. Gen., John S. Phillips, Asst. Atty. Gen., for respondent.

HYDE, Judge.

Defendant was convicted of burglary in the second degree (breaking and entering with intent to steal) and sentenced to two years imprisonment. On his appeal, he contends that he was entitled to a directed verdict; that the Court erred in refusing him a continuance after granting leave to the State to endorse the name of an additional witness on the information; that there was prejudicial error in Instruction No. 3; and that the Court did not take proper action on objections to the closing argument of the Assistant Circuit Attorney.

The State's evidence showed the following facts. Dan Masterson (whose name was endorsed by leave), an employee of the Plaza Express, a trucking company, locked the doors and windows of its office building and put on the burglar alarm between 6:30 and 7:00 P.M. on March 6, 1949. This was one of his daily duties. The doors to the adjacent inbound loading dock, through which defendant entered later, were locked by pin drops in a track on the floor. The burglar alarm was hooked on these doors. Masterson then worked at the outbound dock until 9:00 P.M. which was his quitting time. He said employees worked late at the outbound dock which was across the alley but not on the inbound dock next to the office building. Inbound loads were left in front of the inbound dock but they were not touched until morning.

About midnight, the burglar alarm sounded in the office of the American District Telegraph Company and one of their guards went to the Plaza Express. He had a key to the office building and went upstairs and found defendant sitting at a desk in the office, 'appeared like he was kind-a bent over', and there were some desk drawers open. When the guard came in defendant sat up and started getting away from the desk. When he asked defendant what he was doing there he said he was hunting for the boss. Defendant was a driver for Plaza Express making city pick-ups and deliveries. The police were called and took defendant into custody. There were safes in the office and some cash and checks were kept there. Defendant made some collections and turned in his cash and checks on the first floor of the office building. However, nothing was found missing from the offices.

When the police came, defendant gave them his name as Charles Harris. As to defendant's actions one of the officers said: 'He kind-of staggered around, and he didn't answer our questions intelligently or coherently. I did smell some alcohol on his breath, however, within a period of ten minutes he changed his attitude completely.' Thereafter, they took defendant downstairs and he showed them how he entered. As to this entrance, their testimony was: 'It is composed of two doors, and each door has two sections, which, on opening, fold together. At some previous time there had been some damage to the door, and there had been temporary repairs made on to it. And he showed us how he had pushed those boards, which had been nailed to the door, and in addition to the natural giving of the door, had allowed him to enter it. * * * He pushed the door in allowing enough room for him to get between the door and the sill, and into the building. * * * It was repaired in one section with small boards about a foot in width and about four foot high. * * * Those boards were pushed inward from the bottom, hanging on the top nails, and the bottom nails were out.'

Defendant testified that he went to the premises to see the foreman of the outbound dock, Bud McGraw; that he entered the office building by merely pushing the swinging door forward; and that he went upstairs to wait for him or other employees to appear. He said he had often visited them at night and they would have coffee and sandwiches together. Defendant had a witness who testified that the loading docks were always open and that there were employees around at all hours day and night. However, this witness said the visiting of the employees was on the docks and not in the office and that he never did go up to the office when the office was closed, to visit with friends.

Defendant contends no jury case was made for the reason that the State failed to show he had broken into and entered the premises with intent to steal or commit a crime, which is an essential element of burglary in the second degree under Section 560.070, R.S.1949, and must be established by the evidence beyond a reasonable doubt. State v. Shipman, 354 Mo. 265, 189 S.W.2d 273, 275; State v Brown, Mo.Sup., 217 S.W.2d 546. However, in the Shipman case, 189 S.W.2d, loc. cit. 275, we said: 'Such intent 'may, and generally must, be proved by circumstantial evidence, for as a rule it is not susceptible of direct proof.' 12 C.J.S., Burglary, Sec. 55, page 731. Consummation of the intent is not necessary to complete the crime of burglary. 'If a person breaks and enters a house intending to steal, he is not exonerated from the commission of burglary merely because he did not steal anything or because he was frightened away before he carried out his intent * * *.' 9 Am.Jur., Burglary, Sec. 27, pp. 254, 255.' Likewise, in State v. Lugar, Mo.Sup., 84 S.W.2d 614, 616, we said: 'The intent with which an act is done may be found, often can only be found, from the attendant circumstances.' See also Kidd v. Commonwealth, 273 Ky. 300, 116 S.W.2d 636. We held in both of these cases that the circumstances shown were sufficient to make intent to steal a jury issue, although in the Shipman case nothing was missing from the store which had been entered and in the Lugar case, only a pair of scissors were missing and they were found on the roof of an adjacent building. In State v. Rutledge, 304 Mo. 32, 262 S.W. 218, cited by defendant, there was no substantial evidence that defendant was the person who entered the drugstore from which property was stolen, and the question of circumstantial evidence of intent was not involved.

Our conclusion concerning the evidence in this case is that there was substantial circumstantial evidence to establish, beyond a reasonable doubt, an intent to steal, if the jury accepted all the facts shown by the State as true. It is not even questioned that there was sufficient evidence of breaking and entering and all the evidence shows defendant was in a place where employees did not go at that time of night. Even defendant did not say that he had ever been in the upstairs office before and it is certainly not reasonable to believe (even from his own evidence) that he would expect to find the dock foreman or other employees in these offices at that time; certainly not if he had to gain entrance in the manner in which the police said he told them he did. The fact that defendant turned in collections in the office building, and knew that money and checks were collected there, furnishes some evidence of his criminal intent in so entering. Likewise, his actions when he was found, his apparently simulated drunkenness and giving a false name to the police are all evidence of such intent. We hold that the Court properly submitted the case to the jury.

As to the endorsement of the name of the additional witness, the record shows the following which occurred prior to the voir dire examination of the jury:

'By Mr. Rankin: Your Honor, the State asks leave to endorse the name, Dan Masterson.

'Mr. Dobberstein: If the Court please ...