State v. Johnson
| Decision Date | 11 May 1970 |
| Docket Number | No. 2,No. 54405,54405,2 |
| Citation | 454 S.W.2d 27 |
| Parties | STATE of Missouri, Respondent, v. Michael C. JOHNSON, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Thomas L. Patten, Asst. Atty. Gen., Jefferson City, for respondent.
Thomas V. Connelly, St. Louis, for appellant Michael C. Johnson; Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel.
BARRETT, Commissioner.
The appellant, Michael C. Johnson, has been found guilty of burglary in the second degree and stealing and since he had a prior felony record the court sentenced him to, allowing 'jail time,' eight years for the burglary and four years for stealing, the sentences to run concurrently. The charge, all in one count, was that on February 3, 1968, Johnson 'did feloniously and burglariously, forcibly break and enter a certain store, shop and building occupying the fifth floor at 1000 Washington Avenue the property of Modern Jacket Company, Incorporated, a corporation, with the felonious and burglarious intent to steal, take and carry away certain goods, wares, merchandise or personal property then and there kept and deposited in the said building; and that Michael C. Johnson did then and there feloniously and burglariously steal, take and carry away thirty-five jackets of the total value of two hundred fifty dollars; the property of Modern Jacket Company, Incorporated, a corporation, with the intent to deprive the owner of the use thereof and convert same to his own use.'
The information, omitting formal matters, is thus set out in full because of appellant's claim that motions for acquittal should have been sustained because the state failed to sustain its burden of proof, one, 'to show a burglary was committed' and, two, failed to show the value of the 'goods allegedly appropriated exceeded $50.00.'
Modern Jacket Company occupied the entire fifth floor of the Merchandise Mart, 1000 Washington Avenue. Access to the fifth floor was by three elevators. There was a stairway from the first to the fifth floor but the fifth-floor stairway was 'walled off' with a material described as 'plasterboard.' On Friday, February 2, 1968, two of Modern's employees secured the elevators and all entrances to the fifth floor and the wall at the stairway was intact. Between 4:30 and 5:00 o'clock on Saturday, February 3, 1968, a McDonnell aircraft employee parked his automobile on St. Charles Street. He had seen 'two colored men standing on the sidewalk' at the Merchandise Mart and as he looked up Tenth Street 'one of these men was boosting another one up the fire escape into this Merchandise Mart Building.' He went to a nearby candy store and called the police. Almost immediately, around 4:50, the police arrived and Officer Meyer boosted Officer Harris up to the fire escape and an open second-floor window--the burglar-alarm wires had been cut at that floor. Officer Harris first heard a noise and when he got to the swinging doors on the second floor he Harris opened the door and yelled but Johnson 'dropped everything and opened this door and ran toward the steps.' Officer Harris yelled 'Stop or I'll shoot' but Johnson ran down the steps, Harris fired one shot over his head and when Johnson continued down the steps to the first floor the officer shot at him and hit his shoulder. In the white bag there were a number of jackets all from Modern Jacket Company's plant on the fifth floor. At the fifth floor the officers found a hole in the plasterboard at the stairway, the jagged hole measured about 11 inches wide and a little over 3 feet in height and appeared to have been 'kicked in.'
The appellant pointing to the open window at the second floor and to State v. Pigques, Mo., 310 S.W.2d 942, says that there is no evidence indicating whether the window was closed or 'secured' and contends therefore that there was no testimony to support a 'breaking and entering of the building.' In this connection he urges that the inner area, the fifth-floor stairwell, was not a 'structure.' The argument, rather ingenuous, overlooks the most pertinent fact in the Pigques case: 'There was no evidence of any attempt to get through the inner door.' The plain implication of the opinion is that had the intruder gotten through the 'inner door' there would have been a completed burglary. But the basic fallacy in the appellant's whole argument is that the charge, proof and verdict here is of burglary in the second degree (RSMo 1959, § 560.070), not burglary in the first degree. RSMo 1959, § 560.040. Again it appears to be necessary to point out that 'it is only in first degree burglary that the method of gaining entry by 'bursting or breaking' is important,' State v. O'Brien, Mo., 249 S.W.2d 433, 434. And basic distinctions of theory aside, the charge and proof here by cogent and convincing circumstantial evidence supports the jury's verdict finding that it was Johnson who after entering the building at the second-floor window 'bursted and broke' the plasterboard closing off the fifth floor and so the court appropriately overruled the motions for acquittal.
The appellant's second point that the state failed to show 'the value of the goods allegedly appropriated exceeded $50.00' likewise misconceives the nature of the charge and the procedure adopted. As stated, the charge was of...
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State v. Gray
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