State v. Kennedy
| Decision Date | 08 November 1965 |
| Docket Number | No. 2,No. 51094,51094,2 |
| Citation | 396 S.W.2d 595 |
| Parties | STATE of Missouri, Respondent, v. John KENNEDY, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Dennis D. Quillen, Special Asst. Atty. Gen., Clayton, for respondent.
Forrest Boecker, St. Louis, for appellant.
BARRETT, Commissioner.
A jury found the appellant Kennedy guilty of burglary in the second degree and stealing property of the value of 'at least' $50.00 and fixed his punishment at two years' imprisonment for each offense (Section 560.095(2) RSMo 1959, V.A.M.S.), 'for an aggregate of four years,' with the consequence that the sentences are successive, not concurrent. Section 560.110(2) RSMo 1959, V.A.M.S.
The information appropriately charged that on July 16, 1963, Kennedy, in Warren County, 'feloniously, and burglariously (did) break into and enter a certain building in which there was at the time no human being, * * * the property of Jim Laflin, an individual, and being a building in which diverse household furnishing and other valuables were then and there kept * * * and did then and there feloniously and burglariously steal, take and carry away the following, to wit: One Sears Dehumidifier, one G. E. table radio, one Motorola T.V., one 20 X 50 Binoculars, one gun lamp, one 22 Remington pump gun, two electric heaters, one 5th of Southern Comfort, one 5th of gin, one 5th of scotch, one 5th of bourbon, one G. E. electric clock, one G. E. electric automatic toaster, and one G. E. automatic coffee pot, having a total of $380.00, and being the personal property of Jim Laflin, an individual * * *.' Sections 560.045, 560.156-560.161 RSMo 1959, V.A.M.S. State v. Zammar, Mo., 305 S.W.2d 441.
The proof was that Mr. Laflin of St. Louis County owned a seven-room lodge on his three-hundred acre ranch in Warren County. The Laflins spent the weekend of July 13-14, 1963, at the lodge, leaving in the evening of the 14th after checking and locking the doors and windows. On July 16, in response to a telephone call Mr. Laflin returned to the lodge and found the doors to both the guesthouse and the lodge ajar and the lights on in the basement, 'the door to the guesthouse was split, and there was a footprint on the door; the door to the lodge itself and the lock jammed, and the catch that holds the lock was pushed free and the wood behind the doorjam was pushed out and broken and split.' The fourteen or so items listed in the information were found to be missing from the lodge. On July 23 Mr. Laflin, with the Sheriff of Warren County who had a warrant for his arrest, went with two City of St. Louis police officers to Kennedy's home at 821 Academy. After knocking on the door Kennedy identified himself, the sheriff read the warrant to him and placed him under arrest. One of the officers said they 'would like to look for certain articles,' Kennedy replied, 'Go ahead and look.' The sheriff said, 'We found a .22 rifle in a pantry; we found a part of a bottle of liquor, gin, on the television set in his living room; he had a radio, a G. E. radio, and also a G. E. clock.' Mr. Laflin, identifying certain articles, said, 'this is the General Electric radio, table model radio, which was taken from the Lodge and which John Kennedy went into the back bedroom of his home and gave to me on the 23rd, when we were there at his house.' Likewise he said of the electric clock, 'it is the clock (value $10.00) which John Kennedy gave to us.' The gin Mr. Laflin identified because it was an unusual, imported brand, 'Tanquer,' expensive, $6.50 a fifth. Also he testified, 'this gun was in the pantry on the shelf clear behind the pans, in the kitchen of John Kennedy's home,' and its value was $40.00. In conclusion, in describing the trip to Kennedy's home, Mr. Laflin said of Kennedy, 'what happened, each item I asked for specifically, he gave me, but he volunteered no items that we did not ask for.' The court sustained an objection to an answer 'Yes, sir; he knew where they came from,' but permitted the answer 'He told me, Sir,' and the question and answer:
It will be noted that there is no direct proof that Kennedy actually broke open the doors of burglarized the Laflin lodge, neither in one sense is there any direct proof that he stole the property found in his residence. Nevertheless the appellant does not challenge the rule that both the burglary and the larceny (here stealing) may be found from his recent, unexplained possession of the property, provided the character and circumstances of the possession meet the tests. 12 C.J.S. Burglary Sec. 59, p. 735; 13 Am.Jur.2d Secs. 53-54, pp. 354-355; State v. Warford, 106 Mo. 55, 16 S.W. 886. The appellant's contention is that certain facts in this record make the unfavorable inferences from possession 'untenable' and that therefore he was entitled to a directed verdict of acquittal as to both charges. Virtually the same contention is made in his complaints that there was a variance in pleading, opening statement and proof as to identity of the articles stolen, their value and ownership. And in this connection it is said that the court erred in giving Instructions 2 and 4 because 'there was a fatal variance between the evidence of the ownership of this stolen property and that hypothesized in each instruction.'
The latter argument has to do with the fact that in the beginning Mr. Laflin testified as if the radio, valued at forty to fifty dollars, belonged to him personally. The fact was that he purchased the radio and gave it to his wife even though it was a party of the lodge household property. It is said that on this record there was a fatal variance in the information, proof and Instruction 4, all of which included this item in its hypothesis. It is urged therefore that the case falls within State v. Wright, 339 Mo. 41, 95 S.W.2d 1159, in which the indictment charged that the 'appellant had burglarized the home of one R. Winfield Scott' when the proof was the house belonged to Roma Scott. It was held that But in this case there is no question as to the ownership of the property burglarized, the lodge, and while the radio was listed in the information and instruction there were other items the gun, the gin, and the clock and the value of these items totals $56.50, a sum in excess of that specified in the stealing statute and they unquestionably were the property of James Laflin. Thus the case is unlike State v. English, 67 Mo. 136, in which there was held to be a fatal variance in a larceny of money when the charge was 'the property of John Peter Sinish' and the instruction authorized a conviction upon a finding of 'the property of Peter Sinish.' And of course the case is unlike State v. Roswell, 153 Mo.App. 338, 133 S.W. 99, in which 'the proof offered is insufficient to show it was his property of that of any one else.'
But this is only one phase of the appellant's argument, his principal claim of failure of proof and of variance is that 'of the fourteen items charged in the information' only four of the items were found in his residence and therefore it is said that possession of this 'trifling and inconsequential part thereof' (State v. Belcher, 136 Mo. 135, 138, 37 S.W. 800, 801) repels any possible inference of guilt of either the burglary or the larceny. In this connection it is said that the 'lapse of a week's time and the interval of sixty miles' is an additional factor repelling any unfavorable inference. Then too it is said that another (the appellant's brother) had confessed the burglary without implicating the appellant and therefore there was an explanation. State v. Duncan, 330 Mo. 656, 50 S.W.2d 1021.
The weakness of the appellant's argument is that it ignores the theory and basic tests ot the rule of recent possession, unexplained, of stolen property or property stolen in a burglary. The tests and rules are set forth in State v. Denison, 352 Mo. 572, 178 S.W.2d 449, a larceny case, since the appellant was acquitted of the burglary charge. 'Recent possession' is to be determined from the facts of each case, there is no definite rule: "[i]t varies under the facts in the particular case from two years to a period of a few days," and there possession of an adding machine and a typewriter two months after the larceny was not too remote. Likewise 'possession,' upon this record, was shown because, in the language of State v. Denison, ...
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State v. Cobb
...and the inference exists both as to the offense of burglary and of stealing. State v. Fields, Mo., 442 S.W.2d 30, 35(10); State v. Kennedy, Mo., 396 S.W.2d 595, 598(2); State v. Durham, Mo., 367 S.W.2d 619, 621(2). However, the jury determines the credibility of the defendant's explanation ......
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