State v. Powell, 48953
| Decision Date | 11 June 1962 |
| Docket Number | No. 1,No. 48953,48953,1 |
| Citation | 357 S.W.2d 914 |
| Parties | STATE of Missouri, Respondent, v. Percy POWELL, Appellant |
| Court | Missouri Supreme Court |
Richard L. Hughes, St. Louis, for appellant.
Thomas F. Eagleton, Atty. Gen., Eugene G. Bushmann, Asst. Atty. Gen., Jefferson City, for respondent.
This is an appeal from a conviction of burglary in the first degree and a sentence of 10 years' imprisonment in the state penitentiary. See Sections 560.040 (Laws 1957, p. 374) and 560.095 RSMo 1959, V.A.M.S. The indictment charged the offense under the Habitual Criminal Statute, Sec. 556.280 (Laws 1959, S.B.No. 117). Five previous felony convictions were alleged, shown and found by the trial judge. The punishment was accordingly fixed by the court. Section 556.280 RSMo 1959, V.A.M.S.
The indictment in question, in part, charged: 'That Percy Powell in the City of St. Louis, on the 11th day of November, 1960, with force and arms, into a certain dwelling house and building of the Catholic High School Association of the Archdiocese of St. Louis, Missouri, a corporation, said building known as St. Teresa's Convent, in the care and custody of Rev. H. J. Roberts, Pastor of St. Teresa's Catholic Church, said convent building situated at No. 2413 North Grand Boulevard, there situate and being and in which said dwelling house and building there was a human being, * * * forcibly did break and enter, by then and there * * * breaking the outer door of said dwelling house and building with the felonious intent then and there and thereby * * * to steal, take and carry away certain goods, chattels and personal property in the said dwelling house and building then and there kept and deposited therein, * * *.'
While the assignment of error is not in proper form, it is apparent from appellant's brief that one of the chief issues sought to be raised on this appeal is whether there was substantial evidence to support a finding that the breaking and entering of the building in question was made 'with the felonious intent then and there to steal therein.'
The defendant offered no evidence and only the one factual issue of the charge is questioned on this appeal. Appellant insists that the testimony of the State's witnesses 'clearly negates any 'intent to steal' on the part of this defendant.'
A number of Catholic nuns, members of an order known as 'Sisters of St. Joseph,' taught in the parochial schools in St. Teresa's Parish and resided in the building known as St. Teresa's Convent. Father Harry Roberts, the Pastor of St. Teresa's Church, had the care and custody of the convent building.
The main front entrance of the convent building, located at 2413 North Grand Boulevard, consisted of outside wooden double doors which were two and one-half inches thick. About three feet back from the outside doors was another set of double doors, panel doors, with glass windows in the top half. On the evening in question, each set of doors was closed and secured by three sets of locks. Sister Theresa Ann was the first to come down on the evening of November 10, 1960, for the night services, prior to retiring, and she closed and locked the doors with a total of six locks.
The outer doors were secured first by an ordinary latch which locks when you close the doors. There was also 'a lock at the top, which closes with a chain, about halfway down, and the next lock is a chain and at the bottom there is a lock that is pushed down into the floor like' from the right-hand door. 'The inner door has a chain like the outside door, and then it has a lock with a chain, and then it has a night lock.'
Sister Mary Agnes, who resided in the convent building, had authority and supervision over the order members of the order. The sisters had retired about 10 p. m. on the evening of November 10, 1960, and, about 2 a. m. the following morning, Sister Mary Agnes was awakened by one of the sisters who reported a noise, stating she had heard it approximately ten minutes prior to reporting it. She asked Sister Mary Agnes to come into her room to see if she could determine if the noise was at the convent or on Grand Avenue. Sister Mary Agnes got up and went to the room of the complaining sister and waited some five minutes, but without hearing anything, so returned to her bed and, shortly thereafter, heard the crashing of glass and she promptly telephoned to the police.
Two police officers from the Fifth District received the call from St. Teresa's Convent about 2:15 a. m., November 11, 1960, and immediately proceeded to that place. There they noticed that the front doors were open and so they went inside the convent. One of them first saw defendant standing against the wall. The other officer first saw defendant as he was coming out of an ante-room inside the building, the first room the officers entered. Defendant, a 'colored man,' was immediately arrested and removed from the building. No burglary tools were discovered, no bag or anything to carry personal property in was located, nor did they find any other person or autombile about the premises. Apparently the defendant was acting alone. He had been drinking.
In the ante-room where defendant was arrested, the officers saw silver, a couple of chairs and a piano. The officers also abserved the two outside wooden doors with a hallway leading into a little vestibule and then two more doors, the top parts of which were made of glass. The glass was broken out of one of these inside doors. The officers observed that the locks had been pushed off the two outside wooden storm doors, the chain lock was off and the other locks had been forced open. The plate glass window in the upper part of one of the inner doors had apparently been broken by a rock, since the officers found a rock inside the building. When asked about breaking into the place, the defendant kept saying, 'I am glad I did it,' that was the only statement he made. One of the officers held the defendant prisoner while the other continued the search of the building, but no other intruder was found.
The Catholic sisters who testified could not identify the defendant. They only saw the police removing a 'colored man' from the convent building.
Other evidence tended to show that the first floor of the convent building was separated into several rooms or divisions with doors between the three main divisions. These doors were not locked. In one of the rooms there were portiers, a table, four chairs, a piano, a piano bench, a few other benches and a few other articles. In another room, an ordinary living room, there was a divan, two chairs and a television. In the chapel the items of value included the sacred vessels, such as the chalice, the ciborium and the monstrance. The chalice is a silver cup, goldplated; the ciborium is a goldplated cup that holds the host that is used at communions; and the monstrance is a metal frame, also goldplated, with is used at benedictions. The value of the three items would amount to around $1000, approximately. Some other witnesses placed the value at $300. There was evidence that these items would be difficult to sell. The statues and other small items in the little parlor, the first room as you enter the convent, were of no great value, perhaps five or seven dollars. They were made of plaster of paris. The statues would be material to the sacred vessels and the blessed sacrament, which were kept in the chapel. No property was missing from the convent after defendant was arrested and removed from the building. The locks on the inner double doors were not broken because the glass had been broken out of one of the doors and it was possible for one to reach in and open the several locks.
At the close of the State's case defendant moved for a judgment of acquittal which was considered by the court and overruled. As stated, defendant offered no evidence.
Appellant's theory that no case was made for the jury is, as stated, based upon his conclusion that the testimony of the State's witnesses 'clearly negates any 'intent to steal' on the part of this defendant.' Appellant argues that had he intended to steal anything he would have entered the building stealthily and at its weakest point. This argument is based upon the testimony of Father Robberts that the rear and side entrances of the convent were not nearly so secure and difficult of access as the front of the building. Appellant neglects to point out that there is no evidence that the defendant knew how the rear and side entrances of the convent were protected, nor is there any evidence to show that defendant knew the building was occupied as a home for the Sisters of St. Joseph, who were teaching in the parochial schools. Since entrance was attempted to be made at about 2 a. m., there is no evidence tending to show that it was particularly important to defendant that the entrance be made 'stealthily', because there was no evidence that he knew the building was occupied.
Appellant further argues that had the defendant intended to steal anything he would have come prepared to break in by means of tools and equipment necessary for a quiet breaking and entering; and that, if defendant intended to steal any of the bulky contents of the building, he would have come prepared with some means of carrying the loot away. Appellant argues that ordinary human experience demonstrates that defendant's forcible entry of the building at its strongest point of defense and the breaking of a glass panel out of one of the inner doors, which produced a great noise and commotion, show that the entrance was not made with any intent to steal. Appellant further argues that since no burglary tools and no bag for carrying equipment were found, and since the type of...
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