State v. Irby

• Decision Date: 12 February 1968
• Docket Number: No. 1,No. 52902,52902,1
• Citation: State v. Irby, 423 S.W.2d 800 (Mo. 1968)
• Parties: STATE of Missouri, Respondent, v. Jackie IRBY, Appellant
• Court: Missouri Supreme Court

Page 800

423 S.W.2d 800

STATE of Missouri, Respondent, v. Jackie IRBY, Appellant.

No. 52902.

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, Henry L. Twigg, Sp. Asst. Atty. Gen., St. Louis, for respondent.

James Haw, Charleston, for defendant-appellant.

HOUSER, Commissioner.

Jackie Irby was charged with burglary and stealing, § 560.110, RSMo 1959, V.A.M.S. The jury returned a verdict finding defendant guilty of both charges. Judgment was entered on the verdict. The court sentenced defendant to commitment in the custody of the department of corrections for two years on each charge, the sentences to run concurrently. Defendant has appealed, challenging the sufficiency of the evidence to sustain a conviction.

The state's case, based on circumstantial evidence, tended to show these facts: On the morning of September 2, 1966 John Jackson's gasoline filling station in Whiting was broken into and a quantity of batteries, cigarettes and razor blades were taken. About 5 or 6 o'clock on the preceding evening defendant and three other young men (whose first names were Dusty, Rayburn and Warren) began driving around Mississippi County in Warren's white 1963 Thunderbird automobile. They were drinking. They went from East Prairie to Wyatt Junction and on to Whiting. Warren 'pulled up' and stopped on a little dirt road behind Jackson's filling station, sometime between midnight and 1 o'clock a.m. Defendant was sitting in the rear seat. Warren said something to defendant. The nature of this communication was not shown. Warren had something in his hand (thought to be a screwdriver), which he got out of a little pocket in the car. Warren, 'kind of mumbling like,' said he believed he could 'get by with it.' He did not say what he thought he could get by with. Warren and defendant got out of the car. They started walking toward Jackson's filling station. Dusty, the state's witness to defendant's activities, testified that he saw Warren go into the filling station, but he did not see defendant go into the filling station and did not know whether defendant went into the station or not. Dusty did not see defendant again after the time defendant left the car with Warren, walking toward the station. It was not shown how far in the direction of the station defendant walked. After Warren entered the filling station Dusty heard a sound like glass breaking. A broken glass in the door was later found. Six or seven minutes after he heard the glass breakage Dusty saw Warren come back to the car with several different kinds of cigarettes in his hand. Defendant was not with Warren when Warren returned to the car. Warrent put the cigarettes on the rear floorboard of the car. Rayburn, who had 'passed out,' was sitting in the car during these events. Warren went back toward the filling station. When Warren teturned with the cigarettes Dusty left the car, made his way to a telephone and called, telling his father to come get him because he did not 'want any part of it.'

The Thunderbird was parked on the wrong side of the road, its lights off and trunk lid raised. A highway patrolman passing by noticed the car, decided to investigate, and found Rayburn sitting in the car, drunk, not knowing where he was. The patrolman found some new batteries, some razor blades and cigarettes in the trunk and on the rear floorboard of the car. The patrolman looked in the direction of the filling station, where he saw two subjects come to the corner of the station. They looked in the direction of the Thunderbird, and then turned and ran across the highway and out into a field. He did not pursue them, could not identify them and could not say that he saw defendant. He was not close enought to identify anyone other than Rayburn. From Rayburn he ascertained the names of the other boys. He radioed this information to the East Prairie police, who picked up Warren and defendant about 1:30 o'clock a.m., traveling south as if leaving East Prairie, in Dusty's father's automobile. Warren's wife and Dusty's father were also in the car. It was not shown that the automobile contained any of the fruits of the crime. There was no evidence of a common scheme or conspiracy to commit a burglary; no evidence of flight; no evidence of contradictory statements made by defendant when arrested, or of any attempt to deceive the officers as to his true name and identity.

Defendant denied that he broke into or entered Jackson's station; denied that he took any property out of the station; denied that they stopped at the station. He testified that they stopped the car at Whiting Ditch, a quarter mile from the railroad crossing at Whiting, where they drank a few beers. He stated that Dusty asked Warren to use his car to see if he could pick up a girl; that Warren and defendant got out of the car and Dusty drove away with Rayburn in the car, 'passed out.' Dusty was to be gone only a few minutes but he did not return. After waiting for an hour Warren and defendant walked to East Prairie, where relatives of Dusty told them 'the law' was looking for them. They met Warren's wife, after which Dusty's father took them back to Whiting. Dusty's father talked to Mr. Jackson, who had been notified of the break-in. They were on their way home when apprehended.

The state's brief, without analyzing the evidence, asserts generally that the evidence goes beyond mere suspicion, concludes that there was sufficient circumstantial evidence to establish guilt and urges that 'appellant simply failed to break the chain of circumstantial evidence.' The writer of the brief misconceives the nature of the burden resting upon the state, which is to prove the guilt of the defendant beyond a reasonable doubt. Where the state relies upon a chain of circumstances to establish guilt it is the burden of the state to forge every link in the chain; it is not incumbent upon the accused to 'break the chain' of circumstantial evidence in order to be entitled to an acquittal. 'Where a chain of circumstances leads up to and establishes a state of fact inconsistent with any theory other than the guilt of the accused, such evidence is entitled to as much weight as any other kind of evidence; but the chain, as it were, must be unbroken, and the facts and circumstances disclosed and relied upon must be irreconcilable with the innocence of the accused in order to justify his conviction.' State v. Morney, 196 Mo. 43, 93 S.W. 1117, 1119.

The facts and circumstances relied upon by the state in this case to establish guilty are not inconsistent and irreconcilable with defendant's innocence and do not point so clearly and satisfactorily to his guilt as to exclude every reasonable hypothesis of his innocence, as required. State v. Walker, Mo.Sup., 365 S.W.2d 597, 601(5). Although the evidence clearly implicates Warren, places defendant in Warren's company for several hours prior to and immediately before the...