State v. Miller
| Citation | 202 S.W.2d 887 |
| Decision Date | 09 June 1947 |
| Docket Number | 40252 |
| Parties | State of Missouri Respondent, v. Stanley Miller, alias Robert Freebersyer, alias Robert Miller, alias Robert Iller, Appellant |
| Court | United States State Supreme Court of Missouri |
From the Circuit Court of the City of St. Louis Criminal Appeal Judge David J. Murphy
Affirmed
Appellant was convicted in Circuit Court of the City of St Louis, Missouri, of the crime of burglary in the second degree, and his punishment was assessed at two years imprisonment in the penitentiary.
Appellant has not favored us with a brief, but we will consider the assignments of error made in his motion for a new trial. His first assignment is that there was no substantial evidence to support the verdict and finding of the jury.
The evidence on behalf of the state tended to show that on January 13, 1946, one Finas Owens was operating a restaurant in a building at 1408 St. Louis Avenue, in the City of St Louis, Missouri, In the restaurant there were six booths, a lunch counter and eight stools. Each booth seated four persons and the top of the booths came up about as high as the shoulders of the average person when seated. A juke box was located against the wall behind the front door and a display box was located near by.
On the date in question, Owens closed his place of business between 11:15 and 11:30 o'clock P.M. Before closing, the booths were washed and cleaned, the place "swept out," the back door was bolted and locked, the two windows in the dining room and the window in the kitchen were closed and locked. No one was left in the building after Owens, his wife and two employees left by the front door and Owens closed and locked the door.
The building had a glass front and Owens, as was his custom, left two fluorescent lights burning in the center of the building. The lights lighted the building so that anyone passing on the sidewalk could see "all through the place." About 11:50 P.M., two police officers walked past the restaurant and observed that the juke box had been pulled away from the wall and partly obstructed the front door. They saw a man in a croched position behind the juke box, apparently prying on the back of the box. While one policeman waited in front of the building, the other hurried to the rear of the building where he found a screen standing on the ground beside an open window. The base of the window was about four feet from the ground. About the time that the Policeman arrived at the open window, the appellant ran from the front to the rear of the building and the officer entered the building through the window and arrested him. When arrested, appellant had a screw driver in his right hand. He had carried the screw driver with him as he ran from the front of the building. The screw driver was not the property of the owner of the restaurant and it was not in the building when the place was closed up that evening.
The screen, which had been unhooked and removed from the rear window, had a large hole torn in it, large enough for a man's hand to be put through it. The hole had not been noticed before. The window had been forced open, raised from the bottom, and the inside hook or clasp at the top of the window had been broken off. The piece broken off was found near by. There were jimmy marks on the bottom of the window, where it had been pried open. The screw driver, which appellant had in his possession, fit perfectly into the marks impressed in the window sill.
The juke box had been swung around, so that it was facing the front door, and it appeared to have been tampered with. There were scratches on the back of the box, it had been "pried on," and some of the wood broken. A wooden receptacle in the back of the box received the coins deposited in the box. Fifteen dollars in money (change), which had been left in the cash register, was not disturbed. Owens had given appellant no permission to enter the building. Appellant did not appear to be intoxicated.
In determining the sufficiency of the evidence to support the verdict, we take as true all of the substantial evidence offered by the state, together with all reasonable inferences to be drawn therefrom, and by substantial evidence, we mean "evidence from which the triers of the fact reasonably could find the issues in harmony therewith." State v. Gregory, 339 Mo. 133, 96 S.W.2d 47. While no one saw appellant break into and enter the building, the jury could draw that inference form the facts in evidence, towit, the fact that appellant was not in the building when it was closed and locked up, but was found therein a short time later, the fact that the screen had been removed from the windown, the latch broken and the window pried open, and the fact that appellant had in his hand a screw driver that was not in the building when it was closed up and the screw driver fitted into the marks in the window sill. From appellant's presence in the building at that hour of the night, without permission of the owner, and the fact that the juke box was moved out and appellant was crouched behind it, prying on it near the cash receptacle, the jury could infer and find an intent to steal therefrom. The facts and circumstances shown by the evidence were sufficient, as a matter of law, if believed, to induce a belief of appellant's guilt beyond a reasonable doubt in the minds of jurors of average reason and intelligence, and to support a finding of breaking and entering, with the intent to steal therein. State v. Lugat, (Mo.Sup.), 84 S.W.2d 614; State v. Shipman, (Mo. Sup.), 189 S.W.2d 273, 275; State v. Carey, 311 Mo. 461, 278 S.W. 719; State v. Mann, (Mo.Sup.), 217 S.W. 67.
The second assignment is that the finding of the jury is against the weight of the evidence. This assignment is too general to present anything for review. Sec. 4125 R.S. 1939; State v. Biven, (Mo. Sup.), 151 S.W.2d 1114, 1119; State v. Kennon, (Mo.Sup.), 123 S.W.2d 46.
The third assignment is that the court erred in overruling appellant's demurrer "offered at the close of the state's case" for the reason that "breaking and entry with intent" were not proven. The record fails to show that appellant offered a demurrer at the close of the state's case, but, if he did, the demurrer was waived when appellant introduced evidence in his own behalf. State v. Cutter, 318 Mo. 687, 1 S.W.2d 96, 97; State v. Willhite, (Mo. Sup.), 159 S.W.2d 768. Appellant's evidence tended to show that he was intoxicated and went into the restaurant about 10 PM., while Owens was there, and sat down in a booth and went to sleep; and that he knew nothing further until he was awakened by the police officers pounding on the restaurant door.
The fourth assignment concerns the filing of the substituted information on which appellant was tried. He was first indicted by a grand jury, but the indictment was held "insufficient in matter of form" and the state was granted leave to file a substitute information in lieu thereof, which was done. Appellant contends that the substitution of the information constituted "a material variance by reason of supplemental allegations as to prior convictions which were alleged fatally and defectively in the indictment." Appellant further contends that the filing of the substituted information restored "the statutory right of a preliminary hearing which he requested before trial"; and that he was...
To continue reading
Request your trial