State v. Matha

• Decision Date: 13 October 1969
• Docket Number: No. 1,No. 52896,52896,1
• Citation: 446 S.W.2d 829
• Parties: STATE of Missouri, Respondent, v. Raymond Stanford MATHA, Appellant
• Court: Missouri Supreme Court

Page 829

446 S.W.2d 829

STATE of Missouri, Respondent, v. Raymond Stanford MATHA, Appellant.

No. 52896.

Supreme Court of Missouri, Division No. 1.

Oct. 13, 1969.

Motion for Rehearing or to Transfer to Court En Banc Denied

Nov. 10, 1969.

John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.

Madigan & Hadican, J. Martin Hadican, St. Louis, for appellant.

HIGGINS, Commissioner.

Appellant was convicted by a jury of burglary, second degree, and stealing under an information charging those crimes and five previous convictions. Pursuant to that verdict and upon admission that appellant was duly convicted and served time on the five previous convictions as charged, the court assessed appellant's punishment at imprisonment in custody of the department of corrections for consecutive terms of six years for burglary, second degree, and two years for stealing, and sentenced him accordingly. Sections 560.070, 560.110, and 556.280, V.A.M.S.

Louis Pearlstein, manager of Pearlstein Fur Company, closed and left the company's store premises at 707 Washington Avenue, St. Louis, Missouri, about 8:30 p.m., November 4, 1965. The doors were locked and the display window in the entrance vestibule was intact. The display window contained fur pieces displayed on manikins. When Mr. Pearlstein arrived at the store the following morning the display window had been broken, a manikin was lying in the vestibule, and a fur piece had been taken from the manikin.

Around 10 p.m., November 4, 1965, Frank Bolin observed the display window to be intact. Around 11 p.m., he observed a two-tone Ford automobile containing two persons pass him while he stood on the southwest corner of Eighth Street and Washington Avenue. The occupants of the Ford, particularly the passenger, stared at Mr. Bolin as the Ford was driven east on Washington Avenue. The automobile passed him three or four times as he stood on the southwest corner of Eighth Street and Washington. He crossed the intersection and, as he walked east on the north side of Washington, he observed the Ford make a U-turn at the intersection of Seventh Street and Washington Avenue and come to a stop facing west on the north side of Washington near the corner of Seventh and Washington. The passenger, later identified as the appellant by Mr. Bolin, alighted from the automobile and walked west on the north side of Washington toward Mr. Bolin. When within fifteen feet of Mr. Bolin appellant entered Pearlstein's vestibule. '* * * he ducked into it; he was walking and just suddenly side-stepped right into it.' At this time Mr. Bolin was in front of Loew's Theater located two doors west of Pearlstein's; Mr. Bolin entered the lobby and requested the manager to call the police. While in and as he was leaving the theater lobby, he heard a 'crash and glass breaking. * * * I was on my way back out to the sidewalk and I saw the passenger (appellant) that had gotten out of the car starting to enter the car again.' He was carrying something under his arm. 'It looked like a heavy coat.' The Ford then passed Mr. Bolin going west on Washington. Mr. Bolin noted the license number ZN4--856.

Detective Gerald Guelker arrived at the scene about 11:25 p.m., November 4, 1965. Mr. Bolin gave him a description of the Ford automobile, its license number, and a description of the passenger he had observed in the car, entering the Pearlstein vestibule, and leaving with the coat. '* * * he had on * * * a light-blue shirt with the tail hanging outside, and the slacks were a dark color, a sport jacket and shiny slacks, they shined, it was an iridescent, like--not a silk, just a shiny color.' The man's complexion was 'Between a light and a medium colored and he had a mustache on his upper lip.'

Detective Gene Boswell arrested appellant in the 4400 block on Washington near appellant's home at about 12:30 a.m., November 5, 1965, as a result of the license number furnished by Mr. Bolin. Appellant took the officer to the automobile and produced keys to open it for search. The fur piece was not found.

Investigation of Pearlstein's showed glass fragments both inside and outside the window. Two bricks were inside the window and a hole approximately six feet wide and seven feet high existed in the window.

Appellant's alibi was his presence in Kelly's Lounge from 3 p.m., November 4, 1965, to 12:30 a.m., November 5, 1965.

The stated facts and the inferences they warrant are sufficient to rebut appellant's principal contention that the state failed to make a case. Such evidence shows that appellant entered suddenly the vestibule of Pearlstein Fur Company which had been previously locked and with its display window intact; that immediately after appellant entered the vestibule a crash of breaking glass was heard when the window was broken by a brick, and appellant was seen leaving the vestibule with a coat under his arm. Thus, it was shown that appellant not only was present at the scene with opportunity to commit the crime of burglary and stealing, but he was also seen leaving the scene with stolen property, facts and circumstances which not only prove appellant's guilt but are also inconsistent with his innocence. See State v. Murphy, 356 Mo. 110, 201 S.W.2d 280; State v. McGlathery, Mo., 412 S.W.2d 445; State v. Rogers, Mo., 380 S.W.2d 398; State v. Irby, Mo., 423 S.W.2d 800.

Appellant argues that the most that can be made of the facts and circumstances of his case is 'an opportunity to commit the (larceny) and possibly a suspicion of guilt' as in State v. Murphy, supra. This argument overlooks the distinguishing feature of the two cases. In State v. Murphy, supra, there was no evidence, direct or circumstantial, that defendant ever had possession of the engine allegedly stolen; in this case, appellant was seen with the stolen merchandise in his possession as he left the scene. Neither are State v. Rogers, supra, and State v. Castaldi, Mo., 386 S.W.2d 392, in point because those defendants were not shown to have any connection with the charged crimes other than presence at the scene. Admittedly, this distinction was established by a single witness, Frank Bolin, and appellant...