State v. Reed, 54893
| Decision Date | 11 May 1970 |
| Docket Number | No. 54893,No. 2,54893,2 |
| Citation | 453 S.W.2d 946 |
| Parties | STATE of Missouri, Respondent, v. Gary REED, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Thomas L. Patten, Asst. Atty. Gen., Jefferson City, for respondent.
Jasper N. Edmundson, Hyde, Purcell & Wilhoit, Poplar Bluff, for appellant.
The defendant, Gary Reed, along with three other persons, Donald Lamston, Larry Wrinkle and George Vaughn, was charged with the crime of Burglary.
This defendant's request for a severance was granted by the Trial Court. The case was tried to the Court on the agreement of defendant to waive a jury and with the apparent assent of the trial judge, Article I, Section 22(a), Missouri Constitution, 1945, V.A.M.S. The trial court found defendant guilty and assessed his punishment at two years in the custody of the Missouri Department of Corrections.
The assignments of error raised by the defendant in his Motion for a New Trial and on appeal all relate to the sufficiency of the evidence, and are as follows:
1. The evidence of record is totally insufficient to support the verdict:
2. The verdict of the Court is against the preponderance of the evidence:
3. A new trial should be granted in the interest of justice:
4. The Court erred in failing to grant the defendant a directed verdict of acquittal at the close of the State's evidence.
On the evening of January 6, 1969, defendant, Reed, together with Donald Lamston, Larry Wrinkle, George Vaughn and Mike Montgomery left Poplar Bluff, Missouri, in a two-door model automobile driven by Donald Lamston. After going to Gideon, Missouri, the group headed back toward Poplar Bluff on Highway 35 and pulled into Alford's Cafe and Filling Station in Qulin, Missouri, at about 12:30 a.m. where this incident occurred.
During the trip, the occupants of the automobile drank two six packs of beer and some whiskey, the exact amount not being clear. However, from the testimony it appears they each consumed approximately an equal share.
The defendant here was driving the automobile when it entered the driveway and premises of Alford's Cafe which was closed and locked. The defendant also was the driver of the automobile when it left these premises in flight after the breaking-in and entering.
It was observed that the automobile was very low on gasoline and there was a discussion amongst some of the occupants about getting gasoline at the time. At this point, either defendant, Reed, or Lamston talked to Montgomery about going into the building, turning on the switches and stealing some gasoline, and Reed and Lamston told Montgomery how to turn on the switches inside the premises to activate the gasoline pumps.
Donald Lamston was sitting in the front seat with the defendant who was in the driver's seat. Larry Wrinkle, George Vaughn and Mike Montgomery were seated in the back seat with Montgomery in the middle. Reed and Lamston got out of the automobile for a couple of minutes and, when they returned to the automobile, one of them said something about a window being broken. Next, Montgomery left the automobile by pushing forward the front seat, which was occupied by the defendant. Defendant, at this point, asked Montgomery, 'Are you going in?' Montgomery said, 'Yes.'
Shortly thereafter, Mrs. Murl Alford heard a noise on an intercom system which was connected from her husband's place of business to the bedroom of their home. Mr. Alford also listened to the intercom system and heard footsteps walking across the floor of the business premises. Mr. Alford dressed and called both the sheriff's office and the Highway Patrol. He then took his twelve-gauge shotgun and walked to his place of business which was near his home.
About ten or fifteen minutes had elapsed since the first sound was heard on the intercom system when Alford reached the business premises. Upon reaching his place of business, he first saw an automobile in front of the building and, then, shortly, a boy stepped out of the back door of the restaurant, whereupon Alford shot at the boy who then started to run. Two shots were fired at this boy and one shot was fired at the automobile as it was being driven out of the driveway. All of the evidence identifies Montgomery as this boy, and he so testified.
When the shooting started, the automobile driven by defendant was started, backed and swung around and then headed back toward Campbell, Missouri, away from the City of Poplar Bluff.
At some point near the highway this automobile stopped and Montgomery, who was running from the scene after the shooting, was picked up. Alford then ran back to the house, got in his pick-up truck and followed the automobile which was not out of his sight at any time.
When he was somewhere around two hundred feet behind the automobile it stopped in the middle of the road and all five of the occupants ran into the field. Shortly thereafter, Deputy Sheriff Uric and State Trooper Jones arrived at the scene. Uric apprehended Reed, Lamston and Wrinkle, who were wet up to their knees because they had been wading around in the field. Alford picked up Vaughn and Montgomery and, at this time, Montgomery identified himself as the one who had been shot.
After the apprehension of the five persons involved, Alford returned to his place of business and inspected the building. He found that at a small drive-in window someone had punched a hole in the glass, opened the latch and raised the window. The...
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...of a criminal offense is guilty as a principal without proving a conspiracy. State v. Goodman, 482 S.W.2d 490 (Mo.1972); State v. Reed, 453 S.W.2d 946 (Mo.1970). All that is necessary to support a conviction is a showing of any form of affirmative participation in the crime by appellant. St......
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