State v. Hutchin
| Decision Date | 12 February 1962 |
| Docket Number | No. 48889,No. 1,48889,1 |
| Citation | 353 S.W.2d 701 |
| Parties | STATE of Missouri, Respondent, v. William Dean HUTCHIN, Appellant |
| Court | Missouri Supreme Court |
James D. Anderson, Kansas City, for appellant.
Thomas F. Eagleton, Atty. Gen., James Wilson Spencer, Sp. Asst. Atty. Gen., for respondent.
Defendant was convicted of burglary, second degree (Secs. 560.070, 560.095, statutory references are to RSMo and V.A.M.S.) and stealing (Secs. 560.156, 560.161, see also Sec. 560.110) under the Habitual Criminal Act (Sec. 556.280) and sentenced to ten years for burglary and five years for stealing to run consecutively. Defendant has appealed but filed no brief so we consider all assignments properly made in his motion for new trial. State v. Stehlin, Mo.Sup., 312 S.W.2d 838. Defendant's motion states ten grounds. Since ground 6 alleges error in overruling defendant's motion for a directed verdict we will state the facts shown by the State.
Defendant's motion at the close of the State's case was waived by offering evidence. State v. Shelby, Mo.Sup., 327 S.W.2d 873, 874, and cases cited. 'In determining the sufficiency of the evidence to sustain a conviction, we consider as true the evidence favorable to the State and the favorable inferences reasonably to be drawn therefrom; and evidence to the contrary is rejected'; State v. Thomas, Mo.Sup., 309 S.W.2d 607, 609, and cases cited; State v. Woolsey, Mo.Sup., 328 S.W.2d 24, 25. Therefore, with the following facts shown by the State's evidence, this ground is wholly without merit. On July 30, 1960, between 3:00 and 3:30 a. m., defendant was seen behind the bar of a tavern, called Mutual Bar, located at 1019 Wyandotte, Kansas City, Missouri, by the night foreman of Mutual Garage, O. V. Gordon, investigating after hearing the breaking of glass. After observing defendant through the glass of the back door, Gordon went to the front door and, arriving there, met defendant coming through the broken glass of the front door. Defendant ran through a parking lot and down an alley to Baltimore Avenue. Gordon followed him, at a distance of 10 or 15 feet, without losing sight of him, to the vicinity of 12th and Baltimore, where defendant got into a taxicab. Gordon told the driver 'not to take him away because he had broke into a place' and the driver said 'he wouldn't.' Defendant started to get out of the cab, but a police patrol car then turned the corner and Gordon called to the officer driving it. The officer arrested defendant and took him to the Mutual Bar. The officer found the glass plate in the front door smashed; the cash register open, coins scattered on the floor, and the front and back doors securely fastened. A search of defendant produced twenty-one one-dollar bills, ten fifty-cent pieces, seventeen quarters, six dimes, five nickels and three pennies, totaling $31.13. Officer Penson, called by the arresting officer, testified that 'the register had been rifled, there was change on the floor, on top of the bar, and also a trail of change toward the front door.' The co-owner of the tavern, John Knowles, called by the police, testified he found money on the bar and on the floor and, upon checking his register, he found between thirty-one or thirty-two dollars missing. The defense was alibi, defendant claiming he was drinking in several taverns during the night, got drunk and was arrested when he got into a cab to leave after the closing of the last bar he visited. However, according to the State's evidence, he did not account for at least an hour between the time this bar closed and his arrest at 12th and Baltimore.
Grounds 3, 4 and 10 do not comply with the requirements of Rule 27.20, V.A.M.R., being too general to preserve anything for appellate review, stating only that the verdict was against the law, the evidence and the weight of the evidence and was the result of passion, prejudice and bias.
Grounds 1 and 2 alleged error in refusing defendant a continuance after permitting the State to file an amended information and 'for the reason that two of defendant's witnesses were not available to him on the day of the trial.' Concerning this latter contention, there is no such claim shown by the record and no request for a continuance on this ground was made so far as the record shows. Apparently plaintiff was represented by a lawyer of his own choice since he had earlier on arraignment, before the first continuance of his case, refused an offer of the court to appoint counsel for him. The requirements for obtaining a continuance on absence of witnesses are set out in Rule 25.08 and no compliance therewith is shown or claimed. The only reason presented to the court, which was by oral motion, was the filing of the amended information, which made no change as to the crime charged but stated a previous burglary conviction. (Admitted by defendant when he testified.) As to a similar contention, in State v. Wilson, Mo.Sup., 349 S.W.2d 934, 936, we said: See also Rules 24.02, 24.15; State v. Foster, Mo.Sup., 251 S.W.2d 675, 677; State v. Ninemires, Mo.Sup., 306 S.W.2d 527, 530. It further appears that there had been five previous continuances of the case and that the defendant himself stated that he wanted the trial to proceed. Therefore, we hold there was no error in denying another continuance on the showing made.
In ground 5, it was alleged that the court...
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