State v. McCollum

• Decision Date: 13 April 1964
• Docket Number: No. 50144,No. 1,50144,1
• Citation: 377 S.W.2d 379
• Parties: STATE of Missouri, Respondent, v. Raymond Earl McCOLLUM, Appellant
• Court: Missouri Supreme Court

Page 379

377 S.W.2d 379

STATE of Missouri, Respondent, v. Raymond Earl McCOLLUM, Appellant.

No. 50144.

Supreme Court of Missouri, Division No. 1.

April 13, 1964.

Thomas F. Eagleton, Atty. Gen., Julian L. O'Malley, Asst. Atty. Gen., Jefferson City, for respondent.

COIL, Commissioner.

A jury convicted Raymond McCollum of second degree burglary and of stealing property of a value of at least $50, and the trial judge found defendant had been priorly convicted of two felonies as charged in the amended information, and sentenced him to the state penitentiary for consecutive sentences of five years for burglary and five years for stealing. See Sections 560.045, 560.156, 560.160, 560.095, 560.110, and 556.280, RSMo 1959 and V.A.M.S. McCollum appealed but has filed no brief. We shall examine the twenty-three assignments of error in his motion for new trial.

The first is that the amended information failed to charge the commission of a crime for the alleged reason that it did not aver what goods, wares, merchandise, and other valuable things had been stolen, the owner of the property which was alleged to have been taken, or the person who was alleged to have stolen that property. There is no merit in the contention because the amended information specifically charges that a television and a sewing machine were stolen from the residence of and were the property of one Jack Toliver and that defendant stole that property.

Assignments 2 and 11 charge, in effect, that the state failed to make a submissible case of second degree burglary and of stealing property of a value of at least $50. In determining that question, we consider the evidence from a standpoint favorable to the state and disregard evidence and inferences to the contrary. State v. Watson, Mo., 350 S.W.2d 763, 766. So considered, the evidence tended to show that on November 4, 1962, Jack Toliver and his family resided in a house in Independence, Missouri; that he and his family departed in the evening of November 3 to visit in Marshall, Missouri, and left the house doors locked and its windows closed; that Toliver was notified the next morning that his house had been broken into and he returned to his home early that afternoon and, upon examination, found that there were several items of personal property missing, including a television worth $200 and a sewing machine worth $100; that later that same day at Sugar Creek Police Headquarters Toliver identified the television, sewing machine, and other property as those items which had been taken from his home; that Toliver had given permission to no one to enter his home or to take any articles therefrom. The evidence showed further that a police officer early in the morning of November 4 observed an Oldsmobile exceeding the speed limit and pursued it through several turns and until it stopped in front of a house. Harold Crump was driving the automobile and defendant and Everett Oringderff were passengers. After arresting Crump for careless and reckless driving and permitting defendant and Oringderff to depart, the officer went to the Oldsmobile to obtain some information from its city license sticker and observed various articles of property in the back seat, including a television which later was identified as the one taken from the Toliver residence. The officer listed the articles found in the automobile and those were later identified by Mr. Toliver as the property which had been taken from his home. The evidence was further that defendant made a written confession in which he admitted that early in the morning of November 4 he, Crump, and Oringderff went to the Toliver home; that he removed the screen from the back window, opened the window, and helped Crump through it; that Crump opened the back door and Oringderff entered the house while defendant remained outside as lookout; that Crump and Oringderff brought many articles out of the house, including a television which, with defendant's assistance, was placed in the Oldsmobile along with the other articles; that the three proceeded in the Oldsmobile to Oringderff's mother's house and, after stopping there, Crump was arrested; that defendant and Oringderff left and went to the basement of the home of Oringderff's sister where they stayed until that afternoon; and that defendant thought they (Crump, Oringderff, and defendant) were going to sell the articles that had been stolen.

It is clear that the state made a submissible case of burglary in the second degree and stealing. There was abundant evidence that defendant broke into and entered a dwelling house where there was no human being present at the time, with an intent to steal, Section 560.045, supra, and that defendant exercised dominion over property belonging to Mr. Toliver inconsistent with Mr. Toliver's rights by taking the same. Section 560.156, supra.

Defendant introduced the complaint and information in the case of State v. Crump, each of which charged that the same property as that involved in this case was stolen on October 4, 1962. Defendant contends that such evidence made the state's testimony in this case so conflicting as to be of no probative value. The state adduced evidence from which the jury reasonably could have found that the October date in the Crump complaint and information was a typographical error and that the property had been taken on November 4, 1962, as charged in the present information. In any event, the discrepancy between the Crump records and the records and testimony in the present case went to the weight of the evidence in this case and had no decisive effect upon the question whether there was a submissible case.

New trial assignments 3 through 10 charge the erroneous admission of evidence.

Assignment 3 avers that the trial court erred in permitting a police officer to read from his written report which had not been offered or received in evidence. The record shows that the police officer answered that he had received a call at a certain time on November 4 from a dispatcher and had proceeded to the Toliver residence, whereupon defendant objected that the officer was reading from his report. The trial court by questions established that the paper the witness had was his report and that he was refreshing his memory from that report. The court overruled the objection and, out of the hearing of the jury, defendant's counsel asked that the record show that the witness was reading from the report and not using it to refresh his recollection. The court stated that such was not the fact and the questioning proceeded without further objection. Thus it appears that the trial judge determined as a fact that the report in question was used to refresh the witness's recollection, and the new trial averment to the contrary does not prove itself.

Assignment 4 charges the trial court with error in admitting state's exhibit 1, a photograph of the rear of the Toliver residence, for the stated reason that it did not purport to constitute a picture of the rear of that residence as it appeared after the alleged burglary and stealing and thus was not a fair representation of the scene. The next-door neighbor testified that the picture represented the condition of the rear of the Toliver residence as it existed at approximately 7:45 in the morning of November 4 in so far as the picture showed the back window open and the window screen on the ground beneath the window and showed the back screen door open but that, contrary to the picture, the back door was also open so one could look in and see the stove. Such testimony was sufficient identification of the exhibit. The photograph tended to aid the jury in understanding the testimony with respect to the condition of the rear of the Toliver residence on the same day and shortly after the alleged burglary and stealing had occurred. See State v. Brown, Mo., 312 S.W.2d 818, 822[3-7].

New trial assignment 5 avers that the trial court erred in admitting state's exhibit 7 which purported to be a list of the items of property stolen from the Toliver residence on the ground that the information appearing on the exhibit amounted to hearsay in that it was a record of what Mr. Toliver or other persons had stated out of the presence and hearing of the defendant; that no proper foundation had been laid to show that the exhibit was admissible as a business record; and that there was no evidence to show that the person who prepared the list had personal knowledge of the information he recorded. The police officer who arrested Crump for speeding, under the circumstances noted in the above statement of facts, testified that page 2 of Exhibit 7 (as originally offered) was a list of the articles 'that we removed from the car.' After objection by defendant, the state withdrew the first page of the report and only the second page was remarked as state's Exhibit 7. The court admitted the exhibit in evidence. The arresting officer testified that he had found the articles listed on Exhibit 7 in the back seat and trunk of the car driven by Crump, and it was clear that those articles were in the automobile at the time the three persons, including defendant, were occupants of it. Mr. Toliver had theretofore testified that the articles found in the car driven by Crump, including the television and sewing machine, belonged to him and were returned to him by the police. The inference was reasonable that a list of the missing articles which Toliver had theretofore given to the police was a list of the same items or at least a portion of the same items which were listed on state's Exhibit 7. The trial court did not err in admitting state's Exhibit 7. See State v. McBride, Mo., 366 S.W.2d 374, 378.

New trial assignments 6 and 7 will be considered together. Assignment 6 charges error in admitting a document written in longhand which purported to be a confession of defendant, and assignment 7 assigns error in admitting state's Exhibit 9 which was a typed...