State v. Myers, 10451

CourtCourt of Appeal of Missouri (US)
Citation551 S.W.2d 312
Docket NumberNo. 10451,10451
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Wilfred MYERS, Defendant-Appellant.
Decision Date12 May 1977

Page 312

551 S.W.2d 312
STATE of Missouri, Plaintiff-Respondent,
Wilfred MYERS, Defendant-Appellant.
No. 10451.
Missouri Court of Appeals, Springfield District.
May 12, 1977.

Page 313

John Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Timothy H. Battern, Asst. Public Defender, Paul Crider, Jr., Public Defender, Rolla, for defendant-appellant.


Defendant was convicted of burglary and stealing under §§ 560.045 and 560.110, RSMo 1969. We reverse and remand because the jury was improperly instructed upon the inference of guilt to be drawn from the unexplained possession of recently stolen property.

The state presented a circumstantial evidence case. Its proof indicated a mobile home belonging to Mr. and Mrs. Leon Affolter near Newburg, Missouri, was burglarized and numerous items were stolen on the evening of August 4, 1975. The break-in occurred between 5:00 and 11:00 p. m. About a week later police officers found some of the stolen goods in defendant's house and in a crawl space under the house. Defendant told officers he had bought the goods found in the living areas of his house from a person named Norman Bradshaw; he stated he knew nothing about the items under the house.

Defendant did not testify at trial. Two witnesses, his mother and sister, testified defendant was working at the mother's uniform shop in Rolla during the evening of the burglary. No other evidence was presented by defense counsel.

The single point on appeal is the propriety of Instruction Number 7, not in MAI-CR, given as follows:

"Evidence has been introduced that the defendant was in the possession of some of the stolen goods taken in the offense for which he is on trial.

"If you find that the defendant had recent, unexplained possession of some of the stolen goods taken in the burglary for which he is charged, then you are allowed to reasonably infer the defendant's guilt of the offenses of burglary and stealing."

Defendant objected at trial, and now argues on appeal, that the above instruction was an impermissible comment upon his failure to testify. We find the instruction was improper and constituted reversible error; however, we do so upon other grounds and thus do not rule whether it violated his right to remain silent.

It is the rule in Missouri that evidence of a burglary and of defendant's unexplained possession of the recently stolen property permits an inference of guilt both as to...

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3 cases
  • State v. Feeler, 11707
    • United States
    • Court of Appeal of Missouri (US)
    • May 18, 1981
    ...1969). See also State v. Arnold, 566 S.W.2d 185, 188 (Mo.banc 1978); State v. Lewis, 482 S.W.2d 436, 437 (Mo.1972); State v. Myers, 551 S.W.2d 312, 313 (Mo.App.1977). Unexplained possession of stolen property ten days after its theft is not too remote in time to support a conviction. State ......
  • State v. Bailey, WD
    • United States
    • Court of Appeal of Missouri (US)
    • January 4, 1983
    ...of burning. The unexplained possession of the stolen property would support a finding of guilt for burglary and stealing. State v. Myers, 551 S.W.2d 312 (Mo.App.1977) and State v. Denison, 352 Mo. 572, 178 S.W.2d 449 Appellant offered evidence of others having the cycle and of burning it. T......
  • State v. James, 40030
    • United States
    • Court of Appeal of Missouri (US)
    • January 23, 1979
    ...presence, his attempted flight, and his possession of stolen goods were sufficient to support his guilty verdict. Compare State v. Myers, 551 S.W.2d 312(1) Judgment affirmed. REINHARD, P. J., and GUNN, J., concur. ...

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