State v. McCulley, 47082

• Decision Date: 14 September 1959
• Docket Number: No. 2,No. 47082,47082,2
• Citation: State v. McCulley, 327 S.W.2d 127 (Mo. 1959)
• Parties: STATE of Missouri, Respondent, v. Lee Estus McCULLEY, Appellant
• Court: Missouri Supreme Court

Page 127

327 S.W.2d 127

STATE of Missouri, Respondent, v.Lee Estus McCULLEY, Appellant.

No. 47082.

Supreme Court of Missouri, Division No. 2.

Sept. 14, 1959.

No appearance for appellant.

John M. Dalton, Atty. Gen., Julian L. O'Malley, Asst. Atty. Gen., for respondent.

LEEDY, Justice.

Lee Estus McCulley and his half brother, Floyd Andrew Gray, were jointly charged in the Circuit Court of the City of St. Louis with burglary in the second degree, and stealing property of the value of at least fifty dollars.For the purpose of enhancing the punishment, in the event of conviction, the amended information upon which the case was tried also alleged (RSMo1949 Sec. 556.280, V.A.M.S.) their former convictions on numerous charges of felony (seven as to McCulley), their incarceration in the Missouri penitentiary thereunder, and subsequent discharges upon lawful compliance with their sentences.A severance was granted, and upon his separate trial, the jury returned a verdict finding McCulley (hereinafter referred to as defendant) not guilty of the burglary, and further finding him 'guilty of stealing of a value of $50 or over and of a prior conviction or convictions of a felony,' and assessed his punishment at 'ten years in the State Penitentiary,'Defendant appeals from the judgment entered and sentence pronounced in accordance with the verdict.

The case is here on a full transcript of the record, it having been ordered furnished at the cost of the state; but defendant has filed no brief.We look, then, to the assignments of his motion for new trial for the points to be relied on for reversal of the conviction.From a reading of the record, it is not to be wondered that the motion for new trial fails to challenge the sufficiency of the evidence to support the verdict.

The premises alleged to have been burglarized were located at 25 South Compton in the City of St. Louis, being an elementary school building of the St. Louis Board of Education known as Waring School.The property allegedly stolen (the ownership of which was laid in 'St Louis Board of Education, a corporation, in the care and custody of the said Waring School') consisted of a Philco television set of the value of $150, and various items of groceries of the value of $100, or a combined total value of $250.

In summary, the state's evidence was that about 4:45 A.M., on January 10, 1958, a Packard car (driven by defendant's father, Ben McCulley, in which defendant and his half brother, Floyd Andrew Gray, were riding--all three in the front seat) had stopped for a traffic light at the intersection of Theresa and Lindell when the lid of the trunk spontaneously opened.As the car was thus stopped a police officer (Charles Douglas), driving a one-man patrol car, approached the intersection from the rear of the Packard, and observed a television set taking up most of the space in the trunk.He stopped his car (lights on) perhaps 15 feet to the rear, and somewhat to the left of the Packard.He saw defendant close the lid of the trunk as he, the officer, walked toward the Packard.He walked around to the left side of the Packard, and spoke first to the two men in the front seat (Ben McCulley and Floyd Andrew Gray), and ordered them 'to come out and keep their hands where I could see them.'At this juncture, and by the merest chance, a fellow police officer came upon the scene.The officers then observed large quantities of foodstuff on the rear seat and on the floor of the rear part of the car--'blocks of hamburger something like 6 inches square and 2 feet long;' also large quantities of ice cream in gallon cartons, 15 or 20 of them.Defendant and his two companions were then placed under arrest for 'suspected burglary.'

The police officer then and there put the question to defendant as to where he had obtained the property, in reply to which defendant'stated that he, along with Floyd Gray, had burglarized the school at 25 South Compton, which is the Waring School, and had obtained the television set and also the foodstuffs at that location.'He elaborated by telling how Gray had broken a window at the school with a brick, and entered the building through the broken window, and he(defendant) followed, after which they entered the school cafeteria, located certain foodstuff and a television set and carried them out of the building and into a garage across the alley from the school, and then called his father to come down and pick them up.

The school was eight blocks distant from the intersection where the arrests were made.Officer Douglas radioed for more assistance and a cruiser, and on arrival the foodstuff and television were placed in the cruiser along with the arrested persons, and all taken to the Waring School, where defendant and Gray showed the officers how they gained entrance to the school.

Defendant was questioned later the same day at the police station, and in the presence of the principal of the school and the custodian he again related the story he gave at the time of his arrest.

The defense was that Gray alone burglarized the building, stole the property in question which was found therein, and placed it in the trunk of the car, all without defendant having the slightest knowledge thereof.Gray so testified and thereby corroborated defendant's statement as to the latter's want of knowledge.The points relied on make it unnecessary to detail the wholly incredible story each told as to their movements on the night in question under which it was supposedly possible (because of the very brief interval during which they were separated) for defendant not to have known of Gray's burglary and his stealing of the property in question.Under defendant's evidence, the only controverted fact issue remaining in the case was that of defendant's complicity in the crime, and his own admission made that a question for the jury.The jury saw fit to believe the state's evidence in that regard, and to disbelieve that on the part of defendant.

It is objected that defendant's admissions as to the circumstances under which he obtained the television set and foodstuff were erroneously received in evidence because there was no prior showing that he had been apprised of his right ('statutory' is the descriptive adjective used in this connection in making objection at the trial, for which 'constitutional' has been substituted in the motion for new trial) not to make damaging admissions or statements.We are aware of no statutory or constitutional provision which requires, as a condition to an on-the-spot interrogation of an arrested suspect by a policeman, that there by any such admonition...