State v. Jones
| Decision Date | 09 March 1953 |
| Docket Number | No. 43400,No. 2,43400,2 |
| Citation | 255 S.W.2d 801,363 Mo. 998 |
| Parties | STATE v. JONES |
| Court | Missouri Supreme Court |
Lon J. Levvis, Latney Barnes, Barnes & Barnes, Mexico, for appellant.
J. E. Taylor, Atty. Gen., Robert R. Welborn, Asst. Atty. Gen., for respondent.
BOHLING, Commissioner.
Claude Jones was charged with having committed a burglary in the second degree and larceny in Audrain County, Missouri. The larceny charge was dismissed at the colse of the State's case because of a defect in the information with respect to said charge. The jury found defendant guilty of the burglary and assessed his punishment at two years' imprisonment. Sections 560.045, 560.095 RSMo 1949, V.A.M.S. Several of the points in defendant's brief go to the ultimate issue that the State failed to connect him with the offense. Other points briefed include charges that the sheriff, who was a witness, and a juror were guilty of misconduct and also misconduct on the part of the prosecuting attorney.
On Saturday, September 2, 1950, the dwelling house of Cecil Fisher was entered and a General Electric refrigerator and a Magic Chef cook stove, valued at $250 and $100, respectively, were burglariously stolen. An Argyle electric washing machine, on the back porch, was also stolen. A window of the Fisher dwelling had been broken to effect an entrance. These facts are not disputed.
Approximately seven miles west of Mexico, Missouri, on Highway 22, an east-west concrete road, is a small settlement known as Thompson. Near and west of Thompson are two gravel roads extending north from Highway 22. The first is a minor gravel road a little over 1/4 mile west of Thompson and the second is Route E, a county farm to market gravel highway, about 1 1/4 miles west of Thompson. An east-west dirt road runs practically parallel with and about 1/4 mile north of Highway 22 and connects the two gravel roads. About 1/5 mile west of this minor gravel north road and on the north side of the dirt road is the Fisher dwelling, a short distance west thereof is the Daniel school building and at the northeast corner of the intersection of the dirt road with Route E is a two-room house. Defendant at one time occupied this two-room house and it is designated as the Jones house. The Jones house and the Fisher dwelling were situated on the farm of Mr. and Mrs. David A. Harwood, Sr., the parents of Mrs. Fisher.
Cecil Fisher worked for the A. P. Green Firebrick Company in Mexico. About August 20, 1950, Mr. and Mrs. Fisher took a temporary residence with his parents, who were not well, in Mexico. The Fishers were at their home on Thursday, August 31, 1950, and at that time locked the house with their household effects therein.
Defendant, who had lived in the two-room house on the Harwood farm for several months, paying rent to Mrs. Harwood, moved to the Dunne trailer camp at Mexico about three weeks prior to the burglary here involved; that is, on or before August 15, 1950. He had an understanding he could return and harvest his garden.
Defendant owned a 1948 Dodge pickup truck. About two months prior to the burglary defendant purchased a set of Firestone tires to replace tires stolen from his truck.
Mr. Fisher told defendant he had moved when defendant, who also worked at the A. P. Green plant, asked him, about two weeks prior to the burglary, if he had moved.
Over the Labor Day weekend defendant went off duty at the plant at 1:00 p. m. Saturday, September 2, and was to return on the 3:30 p. m. shift Monday, September 4, 1950.
There was testimony that around midnight Friday it started to rain; that it was drizzling on Saturday and on Sunday the sun was shining; and that if the articles had been taken prior to the rain, the rain would have washed out the automobile tire tracks hereinafter mentioned.
The burglary and larceny was discovered about 1:00 p. m. Sunday, September 3, and soon thereafter Sheriff Ross Vance of Audrain county and Sgt. Roy F. Dix, of the State Highway Patrol, as well as the Fishers and others arrived and investigated the situation.
The rain had made the soil and dirt road muddy. There were fresh Firestone truck tire tracks leading into, turning around and coming out of the yard of the two-room Jones house at the northeast corner of the intersection of Route E and the dirt road. Upon leaving the Jones yard, the truck had made a sharp turn to the left of east onto the dirt road. These tracks were readily followed continuously east on the dirt road, into the Fisher yard, and up to the Fisher kitchen porch. The truck had backed up to the kitchen porch, heading east and south. The tire treads were plainly visible around the porch where the grass had been worn away. One could see where heavy objects had been 'scooted' across the porch to where the truck had been parked. Then, the tire tracks proceeded back out of the Fisher yard, onto and westwardly along the dirt road. The road had been freshly graded in the vicinity of the Daniel school, and just west of the school the tracks showed that the front end of the truck had gone off toward the ditch and its forward progress had stopped in the mud. The truck had backed 40 or 50 feet, over into another rut, and then resumed going west and turned north at gravel Route E, where the tracks ceased to show on the gravel.
Attempts were made to secure finger prints at the Fisher home and casts of the tire tracks along the dirt road but they found no finger prints and the casts, which did not 'form up good,' had been misplaced.
Sheriff Vance and Sgt. Dix had had experience with impressions made by tires and they identified the tire tracks in question as having been made by Firestone truck tires, the same kind of tire defendant had on his Dodge truck. Sheriff Vance testified that in most places there were four fresh tire tracks distinctly visible in the mud of the dirt road; two made by the rear tires while the truck was traveling east and two made by the rear tires while the truck was traveling west, and these tracks had not been overridden by any other tracks. Sgt. Dix also testified that the tracks had not been destroyed by any others. Cecil Fisher testified that the vehicle made a rut in some places close to 4 inches deep and in other places just a track on the muddy road and that there were no other tracks there.
Sheriff Vance arrested defendant about 3:00 p. m. Monday at the A. P. Green plant. Defendant talked to Sheriff Vance, Sgt. Dix and Farley McGee, employment manager at the A. P. Green plant. Each testified that defendant first said he had not been at Pete Wilson's home; that he had gone fishing on the Chariton river between Moberly and Paris, Missouri, on Saturday, September 2. The Chariton river is not located between Moberly and Paris. Defendant also stated he had gone to his former house to get some vegetables out of his garden for the fishing trip; that he drove down the dirt road, which was muddy, to get one of the Harwood boys to go with him; that he turned around in front of the Fisher house and drove back to Route E. and that was the reason the imprints of the tread of his truck tires were out there. Later, defendant stated he was at Pete Wilson's; that he arrived there Sunday after quitting fishing; that the refrigerator and stove were on Wilson's back porch and, at Wilson's request, he helped move them into the kitchen; that he was sure the articles had come from the Fisher home; that Wilson told him he, defendant, might be in trouble because the man who sold the articles to him, Wilson, had the same type of tires on his truck that defendant had on his. Sheriff Vance stated defendant told him he left Wilson's 'right away,' but Wilson testified defendant left Monday, after staying all day Sunday.
Sheriff Vance recovered the stolen articles at Wilson's. He testified that a truck had backed up to Wilson's porch and the imprint of the tires of the truck were the same as those in the mud road and the Jones and Fisher yards.
Pete Wilson, called by the State, testified that he lived near Philadelphia, Marion County, Missouri; that he first saw the articles Sunday morning in a Ford three quarter ton pickup truck at the junction of Route C and Highway 56, about 2 miles west of Palmyra; that defendant was not present; that the man in possession said, giving reasons, he would sell at a sacrifice if he could dispose of the articles that day; that he did not know the man and had never seen him since; that he paid $100 cash for the articles and the man delivered the articles to his back porch; that it was 'soft' where the truck backed up; that defendant arrived about 10 or 15 minutes after the man left his, witness' home, that is, between 8:00 and 9:00 a. m. Sunday morning, and that defendant helped him place the refrigerator and stove in his kitchen and left there Monday. Wilson testified that defendant wanted to know if the articles were 'hot'; that he told defendant he thought not; that defendant had just shown him the tires on his truck and he also told defendant that
Defendant invokes the rule that where the State relies upon circumstantial evidence to establish defendant's guilt, the facts and circumstances relied upon by the State must be consistent with each other and with the hypothesis of defendant's guilt, and inconsistent with his innocence, and every other reasonable hypothesis except that of guilt. State v. Murphy, 356 Mo. 110, 201 S.W.2d 280, 282; State v. Pritchett, 327 Mo. 1143, 39 S.W.2d 794, 797; State v. Perkins, Mo., 18 S.W.2d 6, 7; State v. Missey, 361 Mo. 393, 234 S.W.2d 777, 781; State v. Richardson, Mo.Sup., 36 S.W.2d 944, 946; 23 C.J.S., Criminal Law, Sec. 907, c., p. 149. Evidence raising a suspicion or probability of ...
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