State v. Myers

• Decision Date: 06 July 1943
• Docket Number: 38236
• Citation: 172 S.W.2d 946,351 Mo. 332
• Parties: State v. James Myers, Appellant
• Court: Missouri Supreme Court

172 S.W.2d 946

351 Mo. 332

State v. James Myers, Appellant

No. 38236

Supreme Court of Missouri

July 6, 1943

Appeal from Nodaway Circuit Court; Hon. Ellis Beavers Judge.

Reversed and remanded.

Wright & Ford and Ellis G. Cook for appellant.

(1) The court erred in admitting the testimony concerning the sawdust, the gloves and substance found on them, the 2x4 and substance found on it. (2) The court erred in admitting the testimony of the witness Hockaday concerning substance found on the gloves and refusing to strike the same. (3) The court erred in overruling the defendant's demurrer to the evidence at the close of the State's case, and at the close of all the evidence. State v. McMurphy, 25 S.W.2d 79; State v. Crabtree, 170 Mo. 642; State v. Richardson, 36 S.W.2d 944; State v. Francis, 199 Mo. 671; State v. Schrum, 152 S.W.2d 17. (4) There was not sufficient testimony offered on the part of the State for the court to submit to the jury the issue of flight. State v. Cox, 267 S.W. 884.

Roy McKittrick, Attorney General, and W. J. Burke Assistant Attorney General, for respondent.

(1) The information in this cause is sufficient in form and substance and states facts sufficient under the law to substantiate a charge of burglary with explosives in the nighttime. Sec 4446, R. S. 1939; State v. Stevens, 147 S.W. 97, 242 Mo. 439; State v. Howard, 147 S.W. 95, 242 Mo. 432; State v. McBride, 12 S.W.2d 46. (2) The verdict is sufficient in form and is responsive to the charge, as set out in the information. Secs. 4446, 4447, 4854, R. S. 1939. (3) The court did not err in refusing to suppress the introduction of the gloves, over-alls and ticket taken off of the person of the defendant after his arrest. State v. Peterson, 154 S.W.2d 134; State v. Shawley, 67 S.W.2d 74, 334 Mo. 352; State v. Barr, 102 S.W.2d 629; State v. Pease, 133 S.W.2d 409; State v. McGee, 83 S.W.2d 98, 339 Mo. 1082; State v. Ryland, 25 S.W.2d 109, 324 Mo. 714; State v. Evans, 68 S.W.2d 705, 334 Mo. 914; State v. Richetti, 119 S.W.2d 330, 342 Mo. 1015. (4) The court did not err in admitting the gloves and substance found on the gloves as evidence. (5) The court did not err in refusing to strike the testimony of the witness, Hockaday, concerning the analysis of the substance found on the gloves. State v. Burney, 143 S.W.2d 273, 346 Mo. 859; State v. Richetti, 119 S.W.2d 330, 342 Mo. 1015; State v. Smith, 222 S.W. 455. (6) The court did not err in refusing to give defendant's Instruction C, which is a duplicate flight instruction of the flight instruction given by the court. State v. Batey, 62 S.W.2d 450; State v. Long, 80 S.W.2d 154, 336 Mo. 630; State v. Wilkins, 100 S.W.2d 889; State v. Peterson, 154 S.W.2d 134; State v. Evans, 133 S.W.2d 389, 345 Mo. 398.

Leedy, P.J. Tipton, J., concurs; Ellison, J., concurs in separate opinion.

OPINION

LEEDY

This is an appeal from a judgment of the Nodaway Circuit Court whereby defendant, upon conviction, was sentenced to a term of 25 years in the penitentiary. The record and briefs in this case create confusion and uncertainty with respect to the nature of the conviction, except that it was under the Habitual Criminal Act. The state's brief, in the opening paragraph, says the information charged defendant "with burglary and grand larceny with explosives in the nighttime." Later, in the same paragraph, it is stated "defendant was tried and convicted of burglary with explosives in the nighttime." Defendant's statement informs us he "was charged with the crime of burglary and attempted larceny in the nighttime with explosives . . . and found guilty." The jury returned a verdict of "guilty as charged in the information" and made an affirmative finding concerning his prior conviction, and assessed his punishment as stated above.

Where a person is charged with two distinct offenses (as permitted in burglary and larceny prosecutions under Sec. 4448 Mo. R. S. A., which makes an exception to the general rule that a person cannot on the same trial be convicted upon two different and distinct felonies), and it appears (as here) that the jury did not make separate findings as to each charge, and separately assess the punishment, the verdict cannot stand. [State v. McHenry, (Mo.) 207 S.W. 808, and cases cited.] "The verdict and judgment are part of the record proper which it is our duty to examine for error, whether or not any error appearing in the record proper be assigned by the appellant in his motion for a new trial or in his brief filed in this court." [State v. Meadows, 331 Mo. 533, 55 S.W.2d 959.]

The information is based on Sec. 4446, which denounces the crime of burglary with explosives. ^[1] Said information is modeled after, and substantially follows, with appropriate changes made necessary on account of differences in the facts, the one approved in State v. Howard, 242 Mo. 432, 147 S.W. 95, and sufficiently charges the single offense defined by said section. So that the general verdict rendered, that of "guilty as charged in the information" (together with the finding as to prior conviction) was sufficient, and did not offend against the rule just noticed.

The record proper shows that upon allocution, defendant was informed by the court that he had "been tried by a jury and found guilty of attempted burglary with explosives in the nighttime as charged in the information," for which offense, he was then and there sentenced under the judgment entered. The information having charged, and the jury having found the defendant guilty of, the offense of burglary with explosives, it follows that the judgment and sentence should have conformed to the verdict, and sentence for an attempt to commit said offense was unauthorized. [For analogous cases, see LaGore v. Ramsey, (Mo.) 126 S.W.2d 1153; State v. Duff, 253 Mo. 415, 161 S.W. 683; State v. Gregory, 178 Mo. 48, 76 S.W. 970.] Moreover, Sec. 4836 Mo. R. S. A., expressly prohibits the conviction of a person for an attempt to commit any crime "when it shall appear that the crime intended or the offense attempted was perpetrated by such person . . . in pursuance of such attempt." For the reason just noted, the case will have to be remanded for the limited purpose of sentencing defendant, and rendering judgment upon the verdict as returned by the jury, unless reversible error affecting the merits is found.

The conviction was obtained on circumstantial evidence, the sufficiency of which is vigorously challenged. This point will be considered first, and in connection with a related question raised by an assignment alleging error in the refusal to strike the testimony of the state's chemist concerning a test made upon a pair of gloves which were taken from defendant's person when he was arrested during the late morning or early afternoon of the day the burglary was committed. The complaint made by the defendant in challenging the sufficiency of the evidence goes no further than that the proof adduced was insufficient to connect defendant with the crime. The evidence was abundant to show that the Bank of Conception, located at Clyde, in Nodaway County, was burglarized in the early morning hours of Monday, April 6, 1942, and that explosives were used therein in an unsuccessful attempt to open the bank's vault. Summarized, the state's showing was to the following effect:

The president of the bank, Charles A. Teson, closed the bank and locked all the doors between 5:30 and 6 o'clock on Saturday, April 4, 1942, at which time he left an electric light burning in the room, as was the custom. He did not return to the bank until 9:40 A. M., the following Monday, April 6th. At about 8:30 on Monday morning, Margaret Keefe, a storekeeper, discovered the front door of the bank was standing ajar. She proceeded at once to open up her own store, which was nearby, but she did not immediately notify anyone about what she had seen, but later, "probably an hour -- three quarters of an hour" she notified Teson. At about 9 o'clock, or shortly thereafter, Joe Enis, the Wabash agent, was passing the bank and he saw the door was open a little, and that no one was inside; he entered, and noticed "something had gone wrong," and left -- "went out in the street." He did not give any alarm or report his findings to Teson or anyone else -- simply "went out and did nothing." A boy had followed him into the bank, but he made the boy "get out." The night light in the bank was not burning at that time.

As stated, Teson arrived at the bank at 9:40. Two highway patrolmen were called, and they reached the scene shortly after 10 o'clock. In the meantime, a deputy sheriff, one Hartness, had been there, and, in the presence of Teson, and perhaps others, examined the premises including the vault door; but Hartness was not called as a witness. Teson and the patrolmen testified concerning the surroundings to this effect: That the front doors had been pried open, and that the hasp and padlock on the back door had been broken, and said door was propped open with a 2x4. Upon entering the bank it was found that there were particles of dried paint "over everything -- floors, and desks, and chairs the floor was practically covered with it . . . and on the teller's cage." The vault door had been "wrecked," the knob which held the combination "was gone, and burned places where the bolt went through it." The combination, some pieces of barbed wire (removed from a fence in the rear of the bank), burned matches, pieces of cotton, and burned fuse were found on the floor. There was liquid on the floor at the bottom of the vault door. It further appears that "eventually" -- to quote the witness Teson -- a slip of paper (State's Exhibit 1) was found by him on the floor" a foot or fifteen inches" from the vault door "among the...