State v. Kelly, 49613

• Decision Date: 11 March 1963
• Docket Number: No. 2,No. 49613,49613,2
• Citation: 365 S.W.2d 602
• Parties: STATE of Missouri, Respondent, v. Ted KELLY, Appellant
• Court: Missouri Supreme Court

Page 602

365 S.W.2d 602

STATE of Missouri, Respondent, v. Ted KELLY, Appellant.

No. 49613.

Supreme Court of Missouri, Division No. 2.

March 11, 1963.

R. J. Southall, Kansas City, for appellant.

Thomas F. Eagleton, Atty. Gen., John C. Baumann, Asst. Atty. Gen., Jefferson City, for respondent.

EAGER, Presiding Judge.

Defendant was charged with stealing property of over the value of $50, Secs. 560.156, 560.161, RSMo 1959, V.A.M.S., ¹ and upon trial he was found guilty by a jury. Upon a hearing apart from the jury the court found, in accordance with the allegations of the amended information, that he had been previously convicted, sentenced and imprisoned for a like offense and fixed his punishment at ten years in the penitentiary. After an adverse ruling on a motion for new trial defendant was permitted to appeal as a poor person. No brief has been filed here on his behalf, so we consider the assignments of his motion for a new trial, and those matters which we examine independently under Rule 28.02, V.A.M.R.

The jury was justified in finding the following facts from the evidence adduced by the State. On February 18, 1962, Richard E. Clinton was an account executive for the Outdoor Advertising Company in Kansas City. At the time of trial he was President of Midland Advertising Company. On that day, Sunday, he drove to 3116 Truman Road in Kansas City at about 11:00 a. m. and parked his car in front of that place; the lot and building there were leased to Midland Advertising Company, and he went there to make an inspection. More specifically, he was in a fenced-in yard, and was checking a pole; he estimated that his car was about 16 feet away. He heard a car door slam, looked up, and saw a man walking away from his car; he also noted that the car door was not fully closed. He called out, asking the man 'what he had taken from the car,' but the man mumbled something and walked on; Mr. Clinton ran back to the building where he could get through the fence, and stopped the man at the corner, about half a block from the car. Some conversation ensued,--essentially as follows: Clinton told the man that he wanted back, right then, whatever he had taken from the car; the man first denied that he had taken anything, but upon Clinton's insistence that he 'meant business,' the man pulled out Clinton's Polaroid camera, which had been lying under the car seat, and handed it over; Clinton asked what else he had taken and the man said nothing. At a suggestion of Clinton that he would search the man, the latter stated, in substance, 'If you touch me, I will kill you.' During the conversation the man had been standing with his right hand in his pocket and 'with something in the pocket,' which Clinton thought 'possibly was a gun.' Becoming somewhat fearful, he did not pursue the idea of a search. The man's final remark was: 'Look, you got your camera back; there was nothing else taken out of the car; there was nothing else worth taking. Why don't you go your way and I will go mine.' With that, he turned and walked off. This man wore a gabardine coat and a brown hat the camera handed over to Clinton by this man was Clinton's own camera. Clinton immediately went into the office on the premises and called the police. Two officers came promptly and he reported the incident to them, with a description of the man.

Within a short time the police returned with the defendant. Mr. Clinton identified the defendant positively at that time, also later in a showup at the police station, and very positively at the trial. He told the officers when Clinton was brought back to him that 'most certainly this is the man.' He had noticed a peculiar appearance about defendant's teeth or gums, which later proved to be due to the use of chewing tobacco or snuff. Clinton had, of course, had an opportunity to observe the defendant in face-to-face conversation in broad day-light.

The officers, cruising the neighborhood after the report, saw a man walking at a point several blocks from the scene of the theft, who appeared to answer the description given them; they stopped him, questioned him, and took him back, with the results already indicated. Mr. Clinton testified that the camera cost him $150 two or three years previously; that it was worth at least $75 at the time in question. He showed considerable knowledge on this subject, having worked temporarily in a store which sold cameras, and having had access to a 'blue book' fixing the values of used cameras. The State, without objection, proved one prior conviction for stealing property of over the value of $50, a sentence of seven years therefor, confinement in the penitentiary, and commutation after about four years. The trial court found these latter facts.

Defendant testified in his own behalf, essentially as follows: that when arrested he was walking downtown 'to fix a refrigerator for a woman'; that he never saw Mr. Clinton until the arresting officers took him back to confront Clinton; that he did not go into or break into Clinton's car and 'take a Polaroid camera.' He admitted nine convictions for burglary, attempted burglary, larceny and stealing over a period of years from 1934 to 1956 or 1957, in Oklahoma, Kansas and Missouri. He testified also, without objection, that he had possibly been arrested as many as 38 times, but he complained that the police, in the majority of instances, had merely been harassing him.

In the motion for new trial complaint is made first of the supposed lack of competent and substantial evidence to show the value of the camera. The owner testified here that the camera was worth at least $75 at the time of the theft and that it cost $150 two or three years previously. Testimony by an owner as to the reasonable value of his property is usually deemed to be competent and substantial evidence. State v. Brewer, Mo., 286 S.W.2d 782, 783; State v. Brewer, Mo., 338 S.W.2d 863, 868. The weight of such evidence is for the jury. See also State v. Johnson, Mo., 293 S.W.2d 907, 910. Here there was no objection that any improper standard of value was being used, and the testimony was reinforced on cross-examination by a showing that Mr. Clinton had worked temporarily in a store selling cameras and that he had had access, at least, to a book showing the values of used cameras. Under these circumstances his testimony constituted substantial evidence of...