State v. Gibson, 32293

• Decision Date: 15 November 1966
• Docket Number: No. 32293,32293
• Citation: 409 S.W.2d 243
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Joseph Donald GIBSON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 243

409 S.W.2d 243

STATE of Missouri, Plaintiff-Respondent, v. Joseph Donald GIBSON, Defendant-Appellant.

No. 32293.

St. Louis Court of Appeals, Missouri.

Nov. 15, 1966.

Hale W. Brown, Kirkwood, for defendant-appellant.

Lon J. Levvis, Pros. Atty., Mexico, Mo., for plaintiff-respondent.

BRADY, Commissioner.

The defendant was charged in the information with the commission of or aiding and abetting the commission of a burglary and with larceny in connection therewith. He was sentenced to one year in the County jail as a result of his conviction for stealing property of the value of less than Fifty Dollars. No briefs have been filed but the record and those assignments of error properly stated in defendant's motion for new trial are for review by this court on appeal. Criminal Rules 27.20, 28.02, 28.08, V.A.M.R.; State v. Euge, Mo.App., 359 S.W.2d 369.

Among other allegations of error properly presented for our ruling is defendant's contention the trial court erred in not sustaining defendant's motion for a directed verdict of acquittal offered at the close of all the evidence in the case. In this regard defendant's position as stated in the motion for new trial is that there was no evidence '* * * he had aided or abetted any one else * * * in stealing.' This is the only ground which he advances to support his contention the evidence was insufficient. When it is urged that the evidence was insufficient to make a submissible case, this court will accept as true all of the evidence in the record tending to show the defendant's guilt, whether that evidence be circumstantial or direct in nature, together with all favorable inferences reasonably to be drawn therefrom, and disregard defendant's contradictory evidence, if any. State v. Armstrong, Mo., 361 S.W.2d 811.

Stated in the light required of us the evidence shows that the defendant, Gerald Hilkemeyer, Larry Hilkemeyer, Jim Jacobi, Mike Jacobi, and Virgil Erwin had been out on a drinking spree in the late afternoon and early evening of the night the alleged burglary and stealing took place. They had traveled around to several towns in central Missouri drinking and talking to friends and, later that night, returned to Mexico, Missouri. Gerald Hilkemeyer testified that while they were driving down a street in that city Jim Jacobi told him to stop the car, stating '* * * 'I'm going to go steal a car.' * * *'. Jacobi made this statement when they were about one and a half miles away from a used car lot where they later stopped and let Jacobi and the defendant out. The witness Virgil Erwin corroborated this testimony and also testified that Jacobi and the defendant came back from the car lot together and that Jacobi was then carrying a leather briefcase which he put in the car. The defendant testified that upon returning to the automobile Jacobi stated he had kicked out a window of the office building located on this used car lot and that this leather briefcase had been taken from the office. The briefcase contained a notary public seal, a crescent wrench, a pair of pliers, a screwdriver, some ball point pencils, and some business forms. This briefcase was found in the automobile in which the defendant, the witnesses whose testimony is referred to above, and the other persons here involved were riding when the defendant was arrested. Except for the notary seal these items were exhibited to the jury.

The defendant's other allegations of error deal with the giving of Instructions 3 and 4. In its pertinent parts Instruction No. 3 informed the jury that if they found the defendant not guilty of burglary but did find that the defendant and James Jacobi, while acting in concert with each other, did steal and carry away with intent to convert to their own uses and to permanently deprive the owners thereof the articles mentioned in evidence of the value of less than Fifty Dollars, then they were to find the defendant guilty of stealing property of the value of less than Fifty Dollars and assess his punishment at one year in the County jail or a fine of not more than One Thousand Dollars, or both. Instruction No. 4 informed the jury that they could find the defendant guilty of both burglary and stealing, or acquit him of both offenses, or find him guilty of burglary and acquit him of stealing, or acquit him of burglary and find him guilty of stealing property of the value of less than Fifty Dollars. The jury found the defendant not guilty of burglary and guilty of stealing property of the value of less than Fifty Dollars.

In dealing with defendant's first allegation of error it is unnecessary to rehash the facts stated earlier in this opinion bearing upon defendant's guilt. In view of the limited nature of defendant's attack upon the evidence it is enough to state that the evidence was sufficient to authorize submission to the jury of the State's theory the defendant acted in concert with James Jacobi to steal the briefcase and also substantial and sufficient to support the verdict reached by the jury.

We pass now to the more serious aspect of this appeal. The defendant's attack upon Instructions 3 and 4, as stated in the motion for new trial, is '* * * the property should have been shown to have some value, at least 1 cent and the jury could not weigh the evidence as to the value of these articles * * *.' His theory is that absent proof the articles stolen had some value the defendant cannot be convicted even of stealing less than Fifty Dollars. (See § 560.161, RSMo 1959, V.A.M.S.)

In State v. Stanley, 123 Mo.App. 294, l.c. 297, 100 S.W. 678, l.c. 678, the statement is made that '* * * It is elementary that there must be both allegation and proof of some value of the property alleged to have been stolen to authorize a conviction of larceny. State v. Krieger, 68 Mo. 98. * * *'. See also 52 C.J.S. Larceny § 97, p. 912. We have no quarrel with that statement as a general rule of law but it does not determine the issue here involved. State v. Stanley, supra, involved the theft of some gloves from a box left in a locomotive. The only evidence of the value of the gloves was that the owner had paid 75cents for them some time previously. In the sentence immediately following that set out above the court stated the issue it was ruling as follows: '* * * Is proof of the cost of an article when, as were the gloves, the article itself is exhibited to the jury, any evidence of the value of the article? * * *'. The court decided that proof of cost was evidence of value. The opinion contains a review of other cases which had previously so held. More recent cases involving the general question include State v. Supinski, Mo.App., 378 S.W.2d 602, l.c. 606, where the testimony was as to the original cost of the items, stolen, the length of time they were owned, the use to which they were put, and where the items, as in the instant case, were exhibited to the jury. Our reported case law...