State v. Papin
| Decision Date | 08 February 1965 |
| Docket Number | No. 2,No. 50751,50751,2 |
| Citation | 386 S.W.2d 355 |
| Parties | STATE of Missouri, Respondent, v. Richard PAPIN, Appellant |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., Gary A. Tatlow, Asst. Atty. Gen., Jefferson City, for respondent.
William C. Maier, St. Louis, for appellant.
Defendant was charged with burglary in the second degree and stealing, and one prior felony conviction. He was found guilty of burglary in the second degree, but acquitted of stealing. The court found that defendant had been convicted of one prior felony (the essential facts with reference thereto were stipulated) and fixed defendant's punishment at imprisonment in the state penitentiary for a term of five years. A timely motion for new trial was filed and overruled, and defendant was permitted to appeal as a poor person.
Defendant was represented by counsel throughout the proceedings in the trial court. Counsel filed a motion for new trial and the notice of appeal to this court, but no brief has been filed with this court on behalf of defendant. We will consider all matters properly raised in defendant's motion for new trial and portions of the transcript of the record set forth in Supreme Court Rules 28.02 and 28.08, V.A.M.R.; State v. Jackson, Mo., 369 S.W.2d 199, 200 .
The State's evidence will support the following statement of facts: Eugene Lee, his wife and child left their residence at 1225 Monroe Street, St. Louis, at about 6:30 a. m., on November 19, 1963. The doors and windows of the house, including basement windows, were locked, and a screen which covered a front basement window was intact. Shortly before 1:00 p. m., a 13-year-old school boy, Michael Barylski, walked past the Lee home enroute back to school. He had known the defendant for several months, and observed him sitting on the ground by the front basement window of the Lee house ripping the basement window screen. They spoke to each other, defendant asking Barylski how he was doing in school. Barylski then went on to school, but came back by the Lee residence after school at approximately 3:35 p. m. At that time he observed the screen ripped the rest of the way off, and the basement window was open. The window was 3 to 4 feet wide and about 2 feet high. He went on home, but returned around 4:30 p. m., and reported to Eugene Lee what he had observed. Lee then called the police before entering the house. When Lee and the police entered the house, they found that the door separating the basement from the rest of the house had been forced open from the basement side. Lee's watch, his wife's watch, a collection of Mercury Head dimes, and money from the little boy's piggy bank had been taken from a dresser drawer in the bedroom. Defendant had done some work around the Lee house previously, and for a time fed a dog belonging to Lee, and was familiar with the Lee house. Defendant was arrested December 17, 1963. None of the items taken from the Lee home on November 19, 1963, were recovered.
Evidence for the defendant consisted of the testimony of defendant himself and his mother, Mrs. Nettie Lockhart. Both of them testified that at about 9:00 a. m., on November 19, 1963, defendant came to his mother's residence at 4616 VonPhul in North St. Louis, and that between that time and around 3:00 p. m., they visited and drank in various taverns which they named. Defendant, according to their testimony, left his mother around 3:00 p. m. In addition, defendant denied seeing Barylski at the Lee house on November 19, and denied tearing off the screen or entering the Lee house on that date.
The first point raised in defendant's motion for new trial is that the court erred in sustaining objections to questions asked of witness Eugene Lee 'to determine his motive for his conduct in the prosecution of the case of the State of Missouri vs Defendant, Richard Papin.' To consider this question, it will be best to set out verbatim the questions, answers, rulings and objections as shown by the transcript, as follows:
'QUESTIONS BY MR. MAIER:
'Q. Mr. Lee, do you have any personal reason for wanting to see the defendant in this case, Richard Papin, sent to jail?
'A. Any personal reasons?
'Q. Yes.
'A. I don't quite understand what you mean by 'personal'.
'Q. Any reason that is personal that you have for wanting to see the defendant sent to jail?
'(Thereupon the following occurred out of the hearing of the jury:
In State v. Pigques, Mo., 310 S.W.2d 942, this court held that the trial court unduly limited defendant in his effort to show animus of the prosecuting witness. The opinion points out that defendant Pigques desired to show that there had been violent arguments between the prosecuting witness and defendant over financial matters, that a suit was pending between the two of them for money, and that there had been an investigation by the Wage and Hour Division in which defendant had made a statement which affected the relationship between the two men. None of these showings were permitted, and this court held this was error. By way of contrast, defendant Papin was permitted considerable latitude in his attempt to show animus on the part of Eugene Lee, the prosecuting witness. Michael Barylski was asked if he knew about arguments or bad blood between Lee and the defendant. Barylski testified that Lee told him that on one occasion he got a little mad at defendant. Eugene Lee himself was asked whether he ever had said he would shoot defendant with a shotgun if he saw him around the house, or that he was looking for defendant with his shotgun. He was also asked whether they had had arguments over money. Defendant himself was permitted to testify that he had had numerous arguments with Lee. Defendant went on to testify that on October 16 or 17, 1963, approximately a month before the offense charged, defendant went to Lee and asked him for a 'few bucks' on account of work done, but Lee replied the defendant wasn't worth that to him, but he would give defendant six beers. Defendant testified that he stated to Lee, 'If you don't give me some money, you know my record, I am liable to break into your house.' Lee laughed it off, but produced the six beers. Defendant went on to testify that the next day, using a key to the Lee house which had been given to him to enable him to feed a dog for Lee, he entered the Lee house and took two watches and a .22 pistol. The following day defendant was arrested. He had sold one watch and the .22 pistol, but had the other watch in his possession. The one watch which was sold was recovered, and both watches were returned to Lee, who declined to prosecute. All of this was developed by defendant, presumably to...
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