State v. Jackson, 51982

• Decision Date: 13 February 1967
• Docket Number: No. 51982,No. 2,51982,2
• Citation: 411 S.W.2d 129
• Parties: STATE of Missouri, Respondent, v. Virgle Lee JACKSON and William Calvin Worsham, Appellants
• Court: Missouri Supreme Court

Page 129

411 S.W.2d 129

STATE of Missouri, Respondent, v. Virgle Lee JACKSON and William Calvin Worsham, Appellants.

No. 51982.

Supreme Court of Missouri, Division No. 2.

Feb. 13, 1967.

Norman H. Anderson, Atty. Gen., Jefferson City, Selden M. Jones, Sp. Asst. Atty. Gen., Kansas City, for respondent.

Lawrence O. Willbrand, St. Louis, for appellants.

FINCH, Judge.

Both defendants were convicted by a jury of burglary in the second degree. The trial court found that each had three prior felony convictions and setenced each to a term of ten years' imprisonment. Both have appealed.

In the early morning hours of January 6, 1965, police officers were dispatched to the Metal Goods Corporation building at 8800 Page Road in Overland, St. Louis County, as a result of the sounding of a burglar alarm. Some of the officers, with the aid of a spotlight, observed two persons emerge from a second-story window of the Metal Goods Corporation building onto the roof of a portion of the first story of that building. The two men were kept under observation until, at the direction of the police, they dropped to the ground and were placed under arrest. The two defendants were identified by the police officers as the men who they saw emerge from the second-story window and who were arrested at the scene.

The officers examined the building and found that the window from which the men emerged had a cracked glass, the lock was sprung and there was a pry mark on the window. A button, identified as a button which was missing from the coat of defendant Jackson, was found on the floor beneath the open window.

Inside the building, the door to the office of the company president had been forced. Drawers in the desk in that room had been pried open. On the third floor various tools, including a hammer, crowbar, small jimmy bar and broken screwdriver, as well as the safe handle, were found on the floor or on a cabinet beneath a wall safe, and there were scraps from the safe insulation on the floor.

Defendants assert only two questions on appeal. First, they claim that Instruction No. 2 was erroneous. It was as follows:

'The Court instructs the jury that the intent with which the act or acts of either of the defendants were done is one of the facts for your to determine from all the evidence in this case. This intent need not be proved by direct and positive testimony; in the absence of such testimony, it may be inferred by you from all the facts and circumstances in evidence having reference to and bearing upon the question of intent, if you believe such facts and circumstances have been proved during the trial of this case.'

This instruction, except for the addition of words in the first sentence to make it applicable to more than a single defendant, has been used and approved previously. See Raymond on Instructions, § 3715; State v. Copeman, 186 Mo. 108, 84 S.W. 942. The brief of defendants seems to concede the sufficiency of the instruction in its basic form where there is a single defendant, but asserts that it improperly permits the jury to infer intent of one defendant from acts of the other where there are plural defendants.

In the first place, no question is preserved on this appeal with respect to Instruction No. 2. At the trial defendants objected generally to the giving...