State v. Halk
| Decision Date | 29 April 1975 |
| Docket Number | No. 35919,35919 |
| Citation | 524 S.W.2d 44 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Virgil HALK, Defendant-Appellant. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Charles D. Kitchin, Public Defender, Richard A. Knutson, David V. Uthoff, Asst. Public Defenders, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., and K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty. and Thomas J. Kavanaugh, Jr., Asst. Circuit Atty., Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
Defendant-appellant, Virgil Halk was convicted of the offense of attempted burglary and was sentenced to five years in the Department of Corrections. §§ 556.150, 560.040, RSMo 1969, V.A.M.S. He appeals. We affirm the judgment of conviction.
Mr. and Mrs. Jack Alumbaugh on May 9, 1973, owned a residence at 6128 Westminster Avenue in the City of St. Louis. To the west next door is a residence owned by Dr. Orland W. Johnson. There is a 'gangway' between the two residences. On the morning of May 9, 1973, Mr. and Mrs. Alumbaugh left their home about 8:00 a.m. The doors and windows were locked. They did not give permission to anyone to enter their home that day.
At about 9:00 a.m. Mrs. Cheryl McKee, who lived a few doors away from the Alumbaughs, was taking her daughter to school and had occasion to walk by the Alumbaugh home. When she arrived at the gangway between the two homes, she 'observed two young men kneeling in the gangway in front of the (basement) window, and one young man was pushing on the window.' One of the men she saw kneeling and pushing on one of the windows in the Alumbaughs' residence was the defendant, Virgil Halk. When she saw the young men in the gangway, she said, 'What the hell are you doing there?' and when she made the statement, '(t)hey turned and looked at me and then turned and jumped the fence into Dr. Johnson's back yard.' At about that time, Dr. Johnson had just come back from walking his dog, and Mrs. McKee told him that 'something was going on there.' Dr. Johnson went through his house and out to the back yard to 'see if anybody was around.' About forty-five minutes or an hour later, he went to the back alley because 'I thought I had seen some people pass down the alley. . . .' When he started back toward his house, he was aware of a man standing by the gate. He could not identify the defendant, but Mrs. McKee did. Mrs. McKee knew the defendant because he 'lives on Westminster.' She was able to identify the defendant in a lineup consisting of four men who were 'all approximately the same physical description . . . (h) eight, weight, build, and so forth.'
After Dr. Johnson saw the young men run down the gangway toward the street, he called the police and gave them a general description of the young men. The police and Dr. Johnson examined the Alumbaugh window; the 'bars had been more or less torn loose from the window sash.'
About 10:30 a.m. Mr. Alumbaugh, after receiving a phone message, returned to his home. When he arrived, he found that there
When Dr. Johnson called the police, Patrolman Jerry Jones came to the scene. He spoke with Dr. Johnson and noticed the condition of the basement window. 'When I arrived, the iron bar . . . was on the outside, leaning up against the building.'
Virgil Halk was arrested by Officer Frank Banaszek, on May 9, at the defendant's residence. Eventually trial was held. At trial, the prosecutor inquired of Officer Banaszek--'After the defendant was placed under arrest, was he advised by you or anyone in your presence of his constitutional rights?' He replied, The officer also told the defendant he did not have to make a statement, that anything he said could and would be used against him. During the trial, the prosecutor again inquired of the officer--'(after the lineup at the district station) Did you again advise the man of his rights that he had a right to remain silent and didn't have to make a statement?' The officer replied, (Emphasis added). No objection was interposed, nor was any motion to disregard or motion for mistrial made.
Defendant made a motion for judgment of acquittal at the close of the state's case and again at the close of all the evidence. The defendant did not testify.
After instructions were given, which did not include one on 'mere presence,' the jury returned a unanimous verdict of guilty. Defendant filed a motion for new trial alleging error in that the court erred in (1) 'allowing Patrolman Frank Banaszek to comment on the fact that Virgil Hack (sic) did not make a statement' and (2) 'not instructing the jury on the law as to mere presence of an individual at the scene of an offense.' After the motion was overruled, the defendant was sentenced to five years.
On this appeal, defendant urges three grounds for reversal: (1) 'The trial court erred in permitting testimony concerning defendant's refusal to make a statement since such evidence constituted an infringement on defendant's constitutional rights'; (2) '(t)he court erred in not instructing the jury on mere presence of defendant at the scene of the crime, since it involved a question of law which was necessary information for the jury in reaching a verdict'; and (3) '(t)he trial court erred in overruling defendant's Motion for a Directed Verdict since there was not substantial evidence of appellant's guilt and a cause of action was not sufficiently established.'
We shall determine these points in inverse order. In ruling on the sufficiency of the evidence to sustain a conviction, we consider the evidence in the light most favorable to the state and all favorable inferences reasonably drawn therefrom as true, and all evidence to the contrary is to be disregarded. State v. Favell, 411 S.W.2d 245, 247 (Mo.App.1967); State v. Murphy, 356 Mo. 110, 201 S.W.2d 280, 282 (banc 1947); State v. Cain, 507 S.W.2d 437, 438 (Mo.App.1974).
There is no merit to the defendant's third contention, and the authorities relied upon are not dispositive of the issue here. The defendant correctly states the general principle that evidence that an accused had an opportunity to commit an offense which merely raises a suspicion of guilt and gives rise to conjecture is insufficient to support a conviction. State v. Cain, supra, 507 S.W.2d at 440. Mere presence of an accused at the commission of an offense, while it is evidence to be considered in determining guilt, is insufficient unless there is evidence that the defendant participated in the commission of the offense or associated himself in some way with the venture. State v. Castaldi, 386 S.W.2d 392, 395 (Mo.1965); State v. Cain, supra, 507 S.W.2d at 441. There is evidence here that the defendant actively participated in the offense. The defendant and others were seen in the gangway kneeling by the Alumbaugh window, the defendant was identified by an eye witness pushing on the basement window and the grille was found lying next to the window against the foundation. We conclude that there was sufficient evidence to make a submissible case.
As to the second point, the court gave an instruction that '(a)ll persons are equally guilty who acts (sic) together with a common intent in the commission of a crime and a crime committed by two or more persons acting jointly is the act of all and each one so acting.' Defendant contends that this 'instruction is to (sic) general and inadequate because it omits a necessary area of the law, namely it makes no mention or explanation of mere presence of an accused at the scene of the offense.' He further contends that a 'mere presence' instruction should have been given because this involves a question of law.
Appellant relies upon State v. Schleicher, 458 S.W.2d 351 (Mo. banc 1970). That decision held that the omission of the words 'before or during the commission thereof (the crime)' did not make the instruction given inadequate since the instruction adequately required the presence and assistance in the criminal act itself. 458 S.W.2d at 354--355. That decision is not, we believe, authority for the point raised by appellant. The trial court in this case gave an instruction which required the jury to find beyond a reasonable doubt that if the defendant, acting alone or with others, did, with felonious intent, attempt to break and enter the Alumbaugh home and that defendant failed in the actual perpetration of the burglary, then the jury should find defendant guilty of attempted burglary in the second degree.
The evidence was that Mrs. McKee placed the defendant at the scene; she saw the defendant pushing on the window. The instruction given, we believe, adequately required the jury to find that the defendant was present so that an instruction on presence was not necessary. The trial court did not err in failing to give an instruction on 'mere presence.' No such instruction was requested, and we believe that presence is a fact rather than a matter of law.
Thirdly, defendant makes much of the statement by Officer Banaszek that Defendant vigorously contends that the trial court erred in permitting this testimony and that such a comment indicating silence of an accused permits the jury to draw an inference of guilt. He contends that a long list of cases has...
To continue reading
Request your trial
-
State v. Davis
...manifestation and a clear showing that injustice or a miscarriage of justice results if the rule is not invoked. State v. Halk, 524 S.W.2d 44, 48 (Mo.App.1975); State v. Murphy, supra, 521 S.W.2d at 25; State v. Meiers, 412 S.W.2d 478, 480-481 (Mo.1967). And, ordinarily, alleged errors on c......
-
State v. Hill
...new trial or in the brief on appeal and is therefore deemed abandoned. State v. Scott, 515 S.W.2d 524, 527(4) (Mo.1974); State v. Halk, 524 S.W.2d 44, 48 (Mo.App.1975). Sandra Clemens was permitted to testify. She stated that after she was stabbed she was taken into the back room. One robbe......
-
State v. Stewart
...arrest is inadmissible because he is under no duty to speak. State v. Stuart, 456 S.W.2d 19, 22(3, 4) (Mo.banc 1970); State v. Halk, 524 S.W.2d 44, 48(7) (Mo.App.1975); State v. Benfield, 522 S.W.2d 830, 834(9) (Mo.App.1975). Likewise, answers equivalent to silence are not admissible. State......
-
State v. Gilreath
...S.W.2d 19 (Mo.banc 1970); State v. Phelps, 384 S.W.2d 616 (Mo.1964); State v. Benfield, 522 S.W.2d 830 (Mo.App.1975); and State v. Halk, 524 S.W.2d 44 (Mo.App.1975). In addition, appellant points out that the alleged prejudicial comment was made in the opening statement and that is as harmf......