State v. Favell

• Decision Date: 17 January 1967
• Docket Number: No. 32437,32437
• Citation: 411 S.W.2d 245
• Parties: The STATE of Missouri, Plaintiff-Respondent, v. Clifford FAVELL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 245

411 S.W.2d 245

The STATE of Missouri, Plaintiff-Respondent, v. Clifford FAVELL, Defendant-Appellant.

No. 32437.

St. Louis Court of Appeals, Missouri.

Jan. 17, 1967.

Richard L. Daly, St. Louis, for appellant.

Thomas W. Shannon, Pros. Atty., by James I. Bucher, Asst. Pros. Atty., St. Louis, for respondent.

CLEMENS, Commissioner.

Defendant Clifford Favell appeals from a judgment of the St. Louis Court of Criminal Correction convicting him of stealing a typewriter worth less than $50 and imposing a sentence of six months in jail. See §§ 560.156(2) and 560.161(1), V.A.M.S. The appeal raises a single issue: the sufficiency of the State's evidence.

Defendant Favell and Nelson E. Johnson were jointly charged and separately convicted of the theft. Only Favell appeals. On trial before the court, without a jury, just the State offered evidence. Defendant Favell then moved for discharge because of insufficient evidence to support his conviction, but the court denied his motion. After being found guilty, Favell renewed his motion for discharge and alternatively moved for a new trial. The only point made was the sufficiency of the evidence. The after-trial motion was denied, and judgment and sentence followed. Favell appeals, but he has not filed a brief. So, we limit our review to the single point raised in his after-trial motion and those matters specified in Rules of Criminal Procedure, §§ 28.02 and 28.08, V.A.M.R. State v. Holbert, Mo.App., 399 S.W.2d 142(1).

To determine the sufficiency of the evidence to sustain the conviction, we conside as true the evidence favorable to the State and the favorable inferences reasonably flowing from that evidence. State v. Lee, Mo., 404 S.W.2d 740(6). In that light, the State's evidence:

Ira Schroeder, owner of the typewriter, operated a welding shop on Washington Avenue in St. Louis. The shop had an office area in front and a work area at the rear; the typewriter, worth about $40, was in the office about ten feet from the front door. Mr. Schroeder's son Peter worked in the front office and Mr. Schroeder in the rear of the shop.

Peter Schroeder was alone in the office area using the typewriter when Nelson Johnson came in asking for work. He sent Johnson to the rear of the shop to 'talk to the boss.' While Johnson and Mr. Schroeder were in the back, Peter Schroeder left the office by the front door to move a parked truck. He did not see defendant Favell as he went out, but when he started the truck motor he saw Favell standing on the front step outside the office door.

Meanwhile, in the back of the shop Mr. Schroeder was at work when Johnson came to him from the office area to ask for a job. No work was available, so Johnson returned to the front of the shop; Mr. Schroeder saw him leave the building by the front door. By them, Peter Schroeder had left the office unoccupied. A few minutes later Mr. Schroeder went up front; no one was in the office, and the typewriter was gone. A short while later Mr. Schroeder saw defendant Favell for the first time--when the police returned with Johnson, Favell, two other men and the typewriter.

Police Office Carl Hallgren was cruising the neighborhood when he saw Mr. Schroeder and others congregated in front of the welding shop. Apparently they told him of the missing typewriter, for he drove off in search of suspects. As Office Hallgren reached an alley in back of the welding shop he saw four men walking eastward in the alley, about 250 feet away from him. He did not notice any of them carrying anything. The officer radioed for help and drove around to head off the four men at Ewing Street, two blocks from Schroeder's shop. He arrested them as they emerged from the alley--one of the men was Johnson, one was defendant Favell, and the other two were unidentified. At this point Officer Hallgren still did not see any of the men carrying anything. Soon other policemen arrived at the scene, and they took charge of the four men while Officer Hallgren searched the area. Twenty-five feet back up the alley from where the men had emerged, Officer Hallgren found Mr. Schroeder's typewriter, enclosed in a cardboard box. This was all the evidence.

All persons who participate in a misdemeanor, either as principals or accomplices, are equally guilty. State v. Muchnick, Mo.App., 334 S.W.2d 386(1). However, a difficulty arises here because the State has not filed a brief and we do not know whether it contends Favell is guilty as a principal or guilty as Johnson's accomplice. So, we will examine the sufficiency of the evidence to support defendant Favell's conviction in each capacity--first as a principal and then as an accomplice.

The evidence does not show Favell entered the welding shop or that he saw or could have seen the typewriter inside. We do not know how long the office was unoccupied, only that no one was there when Johnson left by the front door. There was no evidence that defendant Favell was ever in possession of the typewriter. The only evidence connecting him with the theft was his proximity to the welding shop office before the typewriter was stolen, and his presence nearby with three others when the typewriter was found in the alley. To convict Favell as a principal, the evidence must go beyond mere suspicion; his innocence is presumed until...