State v. Giden, 49607

• Decision Date: 08 July 1963
• Docket Number: No. 49607,No. 2,49607,2
• Citation: 369 S.W.2d 212
• Parties: STATE of Missouri, Respondent, v. John GIDEN, Appellant
• Court: Missouri Supreme Court

Page 212

369 S.W.2d 212

STATE of Missouri, Respondent, v. John GIDEN, Appellant.

No. 49607.

Supreme Court of Missouri, Division No. 2.

July 8, 1963.

Wyvetter H. Younge, St. Louis, for appellant.

Thomas F. Eagleton, Atty. Gen., Jefferson City, Thomas R. Green, Special Asst. Atty. Gen., St. Louis, for respondent.

STORCKMAN, Presiding Judge.

The defendant John Giden was found guilty of attempted burglary, second degree, Secs. 556.150 and 560.070, RSMo 1959, V.A.M.S., and his punishment was assessed at imprisonment for a term of two years. After verdict he filed a motion for judgment in accordance with his motions for a directed verdict or, in the alternative, for a new trial, which motion was overruled. The defendant was sentenced in accordance with the verdict of the jury and he has appealed. A co-defendant of Giden was convicted in a separate trial and the judgment was affirmed. See State v. Davis, Mo., 367 S.W.2d 517.

No brief has been filed by the defendant in this court and the case is before us on the transcript of the record and the brief of the state. In this situation our review extends to the assignments of error properly preserved in the motion for new trial and to the essential portions of the record. S.Ct. Rules 27.20 and 28.02, V.A.M.R.; State v. Slicker, Mo., 342 S.W.2d 946, 947.

The first three specifications of error in the motion for new trial are that 'the verdict is against the evidence', 'the verdict is against the weight of the evidence', and 'the verdict is for the wrong party and should have been for the defendant'. S.Ct. Rule 27.20 provides that a motion for a new trial 'must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.' See also Sec. 547.030, RSMo 1959, V.A.M.S. We are precluded from exploring the allegations of the first three paragraphs of the defendant's motion for new trial because they are too general to present reviewable questions on appeal; furthermore, the weight of the evidence is solely within the province of the jury. State v. Schramm, Mo., 275 S.W.2d 343; State v. Fields, Mo., 293 S.W.2d 952, 954; State v. Turner, Mo., 320 S.W.2d 579, 586[17-18].

Next the defendant contends that the trial court erred in refusing to sustain defendant's motion and to direct a verdict of acquittal on the theory that the evidence was insufficient to make a submissible case. This assignment necessitates a review of the evidence.

The place where the attempted burglary was committed was a drugstore at 2607 Cass Avenue in St. Louis. The store building is located on the northwest corner of Jefferson and Cass, and a stock of drugs and merchandise of the value of about $10,000 was kept in the store at the time in question. On December 20, 1961, when the store was closed and locked for the night, the brick wall in the rear was intact and the burglar alarm was turned on. At 1:37 a. m. on December 21, 1961, the store's burglar alarm was activated in the office of the operating company, and the person in charge immediately called the police. In about two minutes after the alarm sounded, two police patrols each containing two officers converged on the drugstore. One patrol car approached from the north over Jefferson and a police officer got out of it at the rear of the store. The other officer drove the car around the corner to the front of the store where he saw two men, later identified as the defendant and Sylvester Davis, standing near the front of the building just west of a gangway which ran to the rear along the west side of the store. A telephone booth stood next to the building just east of the gangway. The officers in the other patrol car approaching from the east on Cass saw the two men emerge from behind the telephone booth as the first patrol car turned the corner and they saw the officer get out and place the defendant and his companion under arrest.

Further investigation disclosed that a hole had been broken in the brick wall at the rear of the building but had not been enlarged sufficiently to permit an entrance to be made. Near the hole in the rear wall, a pick, a crowbar, a screwdriver and another metal instrument were found. All of these tools had brick dust upon them. On a ledge in front of the drugstore, and immediately behind the place where the defendant and his companion were standing when they were apprehended, a pair of gloves were found. They also had brick dust on them.

The defendant and his companion had brick dust on their clothes. The trousers of the defendant were examined by a chemist employed by the police department and loose brick dust found on the outside of the trousers, as well as in the pockets, was shown to be similar to a sample taken from the wall where the opening was being made. The brick dust on the tools was also similar to the sample.

The defendant testified concerning his activities on December 20, 1961, and during the evening. In explanation of his presence near the store, he said that he ate supper at home about midnight and thereafter went with Sylvester Davis to a bus stop on the southeast corner of Jefferson and Cass Avenues intending to take passage on an eastbound bus to get to a produce market on North Broadway in search of work; that ...