State v. Morse

• Decision Date: 29 October 1974
• Docket Number: No. 9613,9613
• Citation: State v. Morse, 515 S.W.2d 608 (Mo. App. 1974)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Walter Eugene MORSE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 608

515 S.W.2d 608

STATE of Missouri, Plaintiff-Respondent, v. Walter Eugene MORSE, Defendant-Appellant.

No. 9613.

Missouri Court of Appeals, Springfield District.

Oct. 29, 1974.

John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

John L. Woodward, Steelville, for defendant-appellant.

TITUS, Judge.

A jury convicted defendant of second degree burglary of and stealing from Carl Willhite's house located on Highway 95 north of Dawson, Missouri. Having been tried under the habitual criminal law, the court sentenced defendant to 10 years for burglary and 5 years for stealing. The state's proof was purely circumstantial; none was offered by defendant. We reverse and order defendant discharged.

Recounted most favorable to the state, the facts are: At 10 p.m. September 5, 1971, Willhite locked his house and departed. He did not return again until 6 p.m. September 7, 1971, at which time he found his home had been forcibly entered and that several household items were missing. These items (television, refrigerator, washer, dryer, sofa and chair) were never recovered. Four muddy tire marks, made by rear dual wheels, were observed on the concrete patio. The authorities testified that three weeks after the crimes were discovered, a truck was found in defendant's possession at Rolla, Missouri, and that three of the truck's four rear tires had treads identical to three of the four tire marks discovered on the patio. A witness told the jury that at 2 a.m. September 6, 1971, he saw defendant 'a mile or mile and a half' from the Willhite residence standing on a road near a truck. The witness related the truck was similar in type to defendant's vehicle but that he did not see what, if anything, was in the truck.

In deciding the sufficiency of the foregoing evidence to sustain the conviction, we must accept it, and all inferences reasonably to be drawn therefrom, as true. State v. Walker, 365 S.W.2d 597, 599(2) (Mo.1963). The inquiry, therefore, is: What did the state's evidence establish? It established: (1) At some unknown time between 10 p.m. September 5, 1971, and 6 p.m. September 7, 1971, a burglary and stealing occurred at the Willhite house; (2) at some unknown time between the times and dates just mentioned, defendant's truck was on the Willhite premises; and (3) at 2 a.m. September 6, 1971, defendant was at a point one to one and a half miles from Willhite's home. However, the evidence did not establish: (a) What time or approximate time the crimes were committed during the two days involved; (b) that the crime of burglary and the crime of stealing were committed at the same time; (c) that the person or persons who committed the crime of burglary were one and the same person or persons who committed the crime of stealing; (d) that defendant's truck was on the Willhite property at the time the crimes were committed; (e) that defendant was present at the Willhite house when the crimes were committed or at any other time; (f) that defendant's presence on the road a mile or a mile and a half from Willhite's home at 2 p.m. September 6, 1971, occurred at a time reasonably close to the time the crimes were committed or (g) that the...