State v. Kilgore, 54139
| Decision Date | 08 December 1969 |
| Docket Number | No. 2,No. 54139,54139,2 |
| Parties | STATE of Missouri, Respondent, v. James Leroy KILGORE, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.
Willard S. Tucker, Springfield, for appellant.
James Leroy Kilgore, defendant, appeals from a judgment of conviction of burglary and stealing in connection with the burglary for which he was sentenced to eight and five years, respectively, in the custody of the Department of Corrections, the sentences to run concurrently.
Defendant's main point is that the court erred in overruling his motion for judgment of acquittal, because there is not sufficient evidence to sustain the conviction. Defendant admits in his brief and in oral argument that there is sufficient evidence to prove that Hough's Grocery Store located at 436 West Atlantic in Springfield, Missouri, was burglarized during the night of September 25--26, 1967, and goods and merchandise stolen therefrom, but, he contends, the evidence is not sufficient to identify him as the burglar and thief.
The evidence, in a light most favorable to the verdict, is as follows. The front door of the store was broken and entered by the forcing and breaking of two locks. At about two o'clock A.M. on September 26, a Mr. W. L. Bean, an all-night employee of a business located across the street from the grocery store, saw three persons, one a man wearing a white T-shirt, carry boxes out the front door of the grocery and walk east on Atlantic. He called the police, reported the burglary, and within a few seconds he saw a police car turn off Main and head east on Atlantic.
Ronald Snow, a Springfield police officer patrolling a nearby area in a marked police car, received a report of the burglary by radio and proceeded toward the scene. Approximately one block east of the grocery he saw a speeding light blue 1960 model two-door Ford which he recognized as one he had previously seen defendant drive. He turned on his red light and siren and gave chase, but after pursuing the Ford for only three blocks he lost control of his car, 'hit something,' and his motor died. During this short chase he saw canned goods falling from the back of the Ford and he was fired at three times by someone in the Ford. He immediately radioed police headquarters and reported his accident and information that the Ford was heading north on Boonville. As soon as he was able to start his car, he again took up pursuit of the Ford and found it in a yard resting against a house it had hit at the intersection of Pierce and Talmage streets, approximately ten blocks from the scene of the burglary. Its passengers had disappeared.
George H. Brinkman, a Springfield police officer, heard the radio report of the burglary and of Officer Snow's accident and the description of the fleeing Ford. Within a few seconds thereafter he saw the Ford, '* * * sitting very low in the back * * * (with) the trunk * * * open, or bouncing open * * *,' and pursued it to the intersection of Pierce and Talmage streets where it went out of control and collided with a house. Several shots were fired at him from the Ford during the chase. When the Ford struck the house its four occupants fled, three from the right door and one, the driver, wearing a white T-shirt and dark trousers, from the left. The driver scrambled over the hood and all ran south to a wooded, brushy area. Officer Brinkman alighted from his car, took his shotgun loaded with .00 buckshot, and followed these men into the woods. He fired once at the man wearing the white T-shirt as the latter turned east and once at another of the four wearing dark clothes as the latter ran southwest. He was unable to find any one of the four and returned to the Ford; it was 'loaded down' with canned goods, cartons of cigarettes and other articles taken from Hough's grocery. On his return from the woods he found Beggar's Lice or Devil's Pitchforks on his trousers and socks.
Elwin R. Harmon, a lieutenant of the Springfield Police Department, heard the radio reports of the progress of the police cars pursuing the Ford and arrived at the intersection of Pierce and Talmage streets close behind Officer Brinkman. As he got out his car he took with him his shotgun loaded with .00 buckshot. He heard shots fired and saw a flash of gunfire west and south of a house at the intersection and ran in that direction. He stopped when he saw three persons, two wearing dark clothing and one in a white shirt and dark trousers, running east across Pierce approximately 40--45 yards south of him. He called to them to stop; they continued to run; he fired at the man wearing the white shirt, and believes he hit him, because, as he fired, this man hesitated for a second and bent forward slightly but kept on running. The officer ran after the men and searched through several brushy areas, but was unable to find them. During this search he found Devil's Pitchforks clinging to his clothing.
Ronald Lindsey, a Greene county deputy sheriff, and other officers, found and arrested defendant and a Margie Martin (Sonny) Wilkerson shortly after four o'clock A.M., on September 26, in a house in the 2400 block of North Kellet Street, approximately one-quarter mile from the intersection of Talmage and Pierce. Wilkerson was lying on a cot in a bedroom feigning sleep and clothed, except for shoes and shirt. Defendant was found in bed feigning sleep in another bedroom. He was wearing his glasses and was fully clothed. His clothing was a white T-shirt, blue jeans, and laced-up boots.
Devil's Pitchforks were found on the trousers of both defendant and Wilkerson. Defendant's shirt had a hole in the front and back with blood-colored smears around them. On the left side of his chest, next to the hole in his shirt front, he had what Lieutenant Harmon describes as an abrasion or burn caused by a 'bullet graze.'
A microscopic examination and a chemical test of the shirt fabric at the site of the holes disclosed graphite similar to that used as a lubricating agent on .00 buckshot which, according to the testimony...
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