State v. McGlathery, 52173
| Decision Date | 13 February 1967 |
| Docket Number | No. 1,No. 52173,52173,1 |
| Citation | 412 S.W.2d 445 |
| Parties | STATE of Missouri, Respondent (Plaintiff), v. Robert Eugene McGLATHERY, Appellant (Defendant) |
| Court | Missouri Supreme Court |
Robert G. Duncan, Lewis E. Pierce, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
Norman H. Anderson, Atty. Gen., Jefferson City, Frederick E. Steck, Sp. Asst. Atty. Gen., Sikeston, for respondent.
WELBORN, Commissioner.
This is an appeal from a judgment imposing a ten-year sentence for burglary in the second degree. The judgment was entered upon a jury's verdict of the guilt of the appellant and the trial judge assessed the punishment in accordance with the Habitual Criminal Act, § 556.280, RSMo 1959, V.A.M.S.
The building involved in the burglary housed the North Gate Super Market in the town of Odessa. The building was located in the north part of town, near Old Highway 40. At approximately 11:00 P.M., on June 16, 1965, Wyman Murphy, residing with his parents in a trailer located in a trailer park approximately two blocks west of the North Gate Super Market, noticed a car stop across from his trailer and under a street light. Murphy called to his mother in the trailer and she too saw the auto, described as a light-colored 1959 or 1960 Dodge. Mrs. Murphy saw a man get out on the right-hand side of the auto and walk northeast toward Old Highway 40 and in the direction of the market. Both Mrs. Murphy and Wyman saw a man emerge from the driver's side of the vehicle, go around to the front of the car, raise the hood, re-enter the car and then leave it, walking in the same direction as the first man.
The second man was described as taller than the first and wearing dark or black clothing. Wyman described his attire as follows: 'It was black clothing; black shirt and black pair of pants, and I noticed one thing, where it must have been a short shirt, because when he bent over the hood of the car, you could see, approximately, 6 or 8 inches of white in between the shirt and his pants; it was a short shirt.'
Mrs. Murphy called her landlord about the automobile and then the town night watchman, Mr. Frazier Miller. Wyman went out and examined the auto, writing down its license number. He also examined it with Mr. Miller, when the latter appeared.
Miller called his night watchman relief, 'Pete' Warren, and the two of them examined the vehicle. Miller remained in its vicinity while Warren went on his regular rounds until about 2:00 A.M., when Miller went home. In the meantime, Warren had also taken the license number of the vehicle and checked it with the State Highway Patrol, who identified the appellant as the owner of the vehicle. Warren continued to check the car at fifteen or twenty-minute intervals. As he was driving toward the highway, at about 2:30, he heard a burglar alarm, which he recognized as coming from the market.
Warren drove toward where he had seen the Dodge parked. It was not where he had seen it previously, but about a half block away from his car he did see the Dodge, which 'took out * * * at a high rate of speed,' with its lights off.
Warren pursued the vehicle for about one half-mile and then called the Highway Patrol, giving them a description of the car and its license number. At 2:40, Trooper Dallam received a radio call, describing the vehicle and its departure from Odessa. The Trooper went to the junction of Truman Road and Route 78 in Jackson County. At 2:57, the auto appeared and the Trooper stopped it. The driver identified himself as the appellant and produced his driver's license. The Trooper stated that appellant had on 'a short Tee Shirt type, which was tight fitting and short sleeved and short waist; the shirt just did come to his waist.' He described the shirt as black or dark blue and a lighter color in front. The Trooper also described that appellant was wearing what appeared to be good shoes, but they were muddy. Appellant told the Trooper that he had not been in Odessa.
After calling the Patrol, Warren went to the market and found that the plywood outer wall covering of a shed-like structure, referred to as a 'bottle house,' adjacent to the building proper had been loosened and partially removed and that within the shed a hole had been knocked through a concrete block wall into the store.
Warren notified the owner of the store and the Lafayette County sheriff, who came to the scene, the latter accompanied by Sergeant Closson of the Highway Patrol. Warren, the sheriff and Sergeant Closson observed numerous footprints in the rear of the market. They covered the footprints with boards to preserve them until daylight. The sheriff then went to Jackson County and placed appellant and the two other persons in the car when it was stopped by Trooper Dallam under arrest for investigation of the market burglary.
Appellant was taken to the Lafayette County jail. The sheriff removed his shoes and he and Sergeant Closson took them to the market at Odessa and compared the shoes with the footprints which they had found there. The shoes were placed in the prints and were found 'identical in comparison.' In addition, the brand name 'Nunn-Bush' appeared on the heels of the shoes and such markings were found in the prints at the scene, along with the design which appeared on the heels of the shoes. The footprints were described as going toward and coming from the rear of the market in the direction of where the Dodge had been parked.
Nothing was taken from the store. No burglar tools were found in appellant's auto when it was stopped. Neither of the Murphys could identify appellant as one of the two persons whom they saw leave the Dodge auto.
Appellant's first contention on this appeal is that the evidence, above summarized, is insufficient to support a verdict of his guilt of the offense charged.
The evidence was, of course, wholly circumstantial. General guides for the testing of the sufficiency of circumstantial evidence have frequently been repeated. Considering the evidence and permissible inferences therefrom in the light most favorable to the state (State v. Watson, Mo.Sup., 350 S.W.2d 763, 766(1)), 'the facts and circumstances relied upon by the state to establish guilt must not only be consistent with each other and with the hypothesis of defendant's guilt, but they must also be inconsistent and irreconcilable with his innocence, and must point so clearly and satisfactorily to guilt as to exclude every reasonable hypothesis of innocence.' State v. Murphy, 356 Mo. 110, 201 S.W.2d 280, 282(2). '* * * (C)ircumstantial evidence merely showing that the defendant had an opportunity to commit the theft charged and creating a suspicion of guilt without more is insufficient to make a submissible case.' State v. Walker, Mo.Sup., 365 S.W.2d 597, 601(6). See also: State v. Tracy, 284 Mo. 619, 225 S.W. 1009, 1010--1011(1); State v. Freyer, 330 Mo. 62, 48 S.W.2d 894, 899(8); State v. Brown, Mo.Sup., 291 S.W.2d 615, 619--620(8, 9); State v. Watson, Mo.Sup., 350 S.W.2d 763, 768; State v. Boothe, Mo.Sup., 364 S.W.2d 569, 571(1--3).
Application of the rules is, of course, a case to case matter, with prior cases, based on necessarily different facts, of minor authoritative impact. Therefore, while we have considered the cases cited by appellant in support of his contention here, none presents a factual situation identical to that of this case...
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