State v. Ramsey
| Decision Date | 04 June 1963 |
| Docket Number | No. 2,No. 49826,49826,2 |
| Citation | 368 S.W.2d 413 |
| Parties | STATE of Missouri, Respondent, v. James Audie RAMSEY, Appellant. . Division |
| Court | Missouri Supreme Court |
Warren H. Kawin, St. Louis, for appellant.
Thomas F. Eagleton, Atty. Gen., Jefferson City, James P. Jouras, Sp. Asst. Atty. Gen., Kansas City, for respondent.
Defendant was charged in the City of St. Louis with attempted burglary, second degree. The case was tried to the court, upon the waiver of a jury entered in open court, and assented to by the trial judge pursuant to Art. 1, Sec. 22(a), Mo. Constitution 1945, V.A.M.S. Such a waiver in a felony case was first permitted by the provisions of that Constitution. The trial court found defendant guilty and assessed his punishment at two years' confinement. Defendant was represented at the trial and is represented here by appointed counsel. Motion for new trial was filed and overruled and this appeal taken, after leave granted to appeal as a poor person.
Since the only substantive question to be considered is that of the sufficiency of the evidence, we relate that in some detail. There is little or no controversy concerning the facts developed. The St. Louis police received a call at about 2:00 a. m. on July 3, 1962, that there was a prowler at a store at the corner of Glasgow and Hebert. Three different cars answered the call but Sergeant Robert Scheetz arrived first. He had driven south on Glasgow and as he approached the designated corner he saw a car (a light colored Lincoln) parked at the east curb of Glasgow, just north of Hebert and alongside a confectionery store on the northeast corner. A man was just in the process of entering the driver's seat, and another man was standing nearby on the corner. The sergeant headed his patrol car into the curb, blocking the exit of the parked car, and got out. He then saw another man, who proved to be this defendant, sitting on the passenger's side of the front seat. Defendant was identified at the trial as that man and no question is raised here concerning the identification. The man on the corner ran east, but was later apprehended by other officers. The sergeant ordered the two men out of the car, placed them under arrest, questioned them briefly, and searched the car. He found on the floor back of the front seat a padlock, a tire tool and a pinch bar. If it be of any significance, the padlock was found on the floor behind the passenger's side of the front seat. The tire tool appeared to have some green paint on it at its pointed end. All three men were taken to the police station later. A few minutes before the police received this call, an officer passing by had seen two men standing on that corner in front of the confectionery.
While still at the scene the police got in touch with the operator of the confectionery store, one Howard Schenk; they had him come there and bring the key to the padlock which he had left on the store's front door. Schenk testified that when he left the store at about 10:00 p. m. on July 2, he had locked the door securely, with the ordinary lock made in the door (such as a 'Yale' lock) and also with a padlock inserted into a hasp secured to the doorframe. When examined by the police and Schenk, the molding and framework of the door were 'pulled away,' the molding was 'chewed up,' and there were 'jimmy marks'; the hasp was open and bent and the padlock was gone. The door was still closed and the other lock was in place. Mr. Schenk gave his padlock key to the sergeant who tried it in the padlock found on the floor of the car and discovered that it readily opened that lock. Both key and lock were retained as possible exhibits and both were offered in evidence, along with the tools. Mr. Schenk also identified the padlock.
Sergeant Scheetz took paint and wood samples from the door and frame where the damage had been done; he delivered those, along with the tools and the shirt and trousers which defendant had been wearing, to the police laboratory. The chemist from the laboratory testified that near the end of the tire tool there were two layers of paint, dark green over gray, which were similar in color to the two top layers of paint on the samples furnished from the door. He found nothing of significance on the trousers or shirt of defendant. The car was registered in the name of a woman who was not further identified. The defendant produced no evidence.
The only question briefed on appeal is the alleged insufficiency of the evidence to support a finding of guilty. This is stated in seven different points but, in full substance, the points are as follows: that upon this evidence the finding necessarily rested upon mere surmise, suspicion, and inference upon inference; that the evidence did not meet the degree of proof required of circumstantial evidence (which will be mentioned later); that no intent was shown, no act of participation by defendant was shown, and that there was no evidence of aiding or encouraging. As a follow-up on these points, counsel also suggest that, the evidence having been fully developed, the defendant should be discharged without remand of the case.
We do not quarrel with the rules of law urged; the only real point here is the sufficiency of the evidence under those rules. Counsel argue that: defendant was not shown to be the driver or a 'lookout'; that he did not flee the scene; that no paint was found on his clothes; that he was not shown to have been previously associated with the other two men; that his mere presence was not enough to convict him; and that no intent was shown.
We do not deem any showing of intent, as such, to be necessary here. There is no question whatever that the crime of attempted burglary had been committed by some one or more persons, with all the necessary elements present. An act of that nature proves, in itself, the intent of those involved. The only question remaining, so far as defendant is concerned, is whether the evidence permits a fair inference of his participation or of his aiding, abetting or encouraging the crime, for any of which he would properly be found guilty. State v. Corbin, Mo., 186 S.W.2d 469; State v. Kowertz, 317 Mo. 426, 297 S.W. 358; State v. Butler, Mo., 310 S.W.2d 952; State v. Whitaker, Mo., 275 S.W.2d 316; State v. Massey, 358 Mo. 1108, 219 S.W.2d 326; Mays v. United States (C.A. 8), 261 F.2d 662; State v. Bresse, 326 Mo. 885, 33 S.W.2d 919; State v. Stidham, Mo., 305 S.W.2d 7, 15.
Defendant relies rather strongly on the accepted rule regarding circumstantial evidence, namely, that where this is relied upon the facts and circumstances must be consistent with each other and with the hypothesis of defendant's guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence. State v. Odum, Mo., 351 S.W.2d 10, 14; State v. Murphy, Banc, 356 Mo. 110, 201 S.W.2d 280. It may be conceded that evidence raising a mere suspicion of guilt, or showing an opportunity to commit a crime, is insufficient. State v. Murphy, supra; State v. Ashe, Mo., 350 S.W.2d 768. In various cases evidence of mere 'presence' has been held insufficient to support a conviction. State v. Odbur, 317 Mo. 372, 295 S.W. 734; State v. Bresse, 326 Mo. 885, 33 S.W.2d 919. And, of course, evidence which merely raises a suspicion or gives rise to conjecture, has often been held insufficient. Murphy, supra; Odum, supra.
"'The presence of one at the commission of a felony by another is evidence to be considered in determining whether or not he was guilty of aiding and abetting. * * *"' State v. Corbin, Mo., 186 S.W.2d 469, 471. And one's 'presence' may have substantially different meanings and raise wholly different inferences under differing circumstances. Evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction. State v. Butler, Mo., 310 S.W.2d 952, 957. Also, evidence sufficient to justify the jury in finding that defendant did in any way aid, abet or encourage another in the commission of a crime is sufficient to support a conviction. State v. Present, Mo., 344 S.W.2d 9, 10; State v. Corbin, supra; State v. Butler, Mo., 310 S.W.2d 952, 957; State v. Stidham, Mo., 305 S.W.2d 7, 15; State v. Bresse, 326 Mo. 885, 33 S.W.2d 919, 921; State v. Muchnick, Mo.App., 334 S.W.2d 386, 388. In many instances no physical act of participation is necessary. State v. Stidham, supra; State v. Whitaker, Mo., 275 S.W.2d 316; State v. Bresse, supra; State v. Butler, supra. The term 'aid and abet' is well defined in Mays v. United States (C.A. 8), 261 F.2d 662, at loc. cit. 664, where the court said: ...
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...and after the offense are circumstances from which one's participation in the criminal intent may be inferred. As stated in State v. Ramsey, Mo., 368 S.W.2d 413, 417, 'Evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction.' It is not ......
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...another in the commission of a crime is sufficient to support conviction. See State v. Stockdale, 415 S.W.2d 769 (Mo.1967); State v. Ramsey, 368 S.W.2d 413 (Mo.1963). An accused's participation in the offense may be inferred by his conduct before, during or after the commission of the offen......
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...guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence.' State v. Ramsey, 368 S.W.2d 413, 416 (Mo.1963). See also State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970). However, the prevailing circumstantial evidence rule, supra, for purpos......
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