State v. Regazzi
| Decision Date | 08 June 1964 |
| Docket Number | No. 50260,No. 2,50260,2 |
| Citation | 379 S.W.2d 575 |
| Court | Missouri Supreme Court |
| Parties | STATE of Missouri, Respondent, v. Robert Frederick REGAZZI, Appellant |
Charles M. Shaw, Clayton, for appellant.
Thomas F. Eagleton, Atty. Gen., Jefferson City, Ronald R. McKenzie, Special Asst. Atty. Gen., Hannibal, for respondent.
PRITCHARD, Commissioner.
Defendant with two accomplices was charged by information with having committed the felonies of burglary of a certain store or building located at 8200 Airport Road, Berkeley, Missouri, and of stealing therefrom cigarettes, money and narcotic drugs of an approximate value of $491.80. Severance was granted and defendant being present and represented by counsel was tried by a jury which found him guilty as charged and assessed his punishment as two years in the penitentiary for each offense. After his motion for new trial was overruled, allocution was granted, judgment was entered and defendant was sentenced to a total of four years in the Department of Corrections. Defendant does not challenge the submissibility of the state's case.
The evidence which is necessary to a determination of the points raised by defendant in his appeal is as follows: Arthur P. McGlasson is a pharmacist who was the proprietor of a pharmacy at 8200 Airport Road, Berkeley, Missouri (at the southwest corner of Airport Road and Fay Avenue). On the evening of July 10, 1962, he closed his place of business, as was his custom, at ten o'clock, and remained in the building doing some book work until beyond midnight, it could have been as late as one o'clock, which would be the morning of July 11, as he testified. Upon leaving the premises he checked all four doors thereto and locked them. Shortly before five o'clock of that morning Mr. McGlasson returned to the pharmacy after being called by the Berkeley police. He found the entire prescription room at the back of the store in disarray; the safe was lying on its back with the door torn off; prescription files were all over the place; the door to the garage in the basement had been pulled halfway up; and a refrigerator in which various biologicals, vaccines and suppositories had been kept was completey cleaned out. A door leading from a doctor's and a dentist's offices (in the rear of the building) to the prescription department of the pharmacy had been jimmied--the bolt was broken and there were tool marks on the wooden portion of the door. A window at the very back of the building in the doctor's office was open. There was another door, which was unlocked, leading to the basement. At the east side of the building, along Fay Avenue, there was a parking lot, and a driveway which was about eight or nine feet wide and which went down to the basement door at about a forty-five degree angle, was also located on the east side of the building. This building was about sixty feet long north and south. At the time of his arrival at the pharmacy building after being called by the police Mr. McGlasson looked into an automobile which was parked by some high hedge bushes in front of a house on Fay Avenue just to the rear of his store. He recognized a lot of his drugs piled on the seat and on the floor of the rear of the automobile, and identified them by the cost code marks which he had placed on the packages. These packages were marked as State's Exhibits 1 through 8 and were admitted into evidence at the trial. In the automobile were also ten cartons of Pall Mall and Chesterfield cigarettes which were missing from the store building.
Police officer David L. Carter of the City of Berkeley, was on July 11, 1962, at approximately 4:59 a. m., patrolling in a police car on Airport Road in the vicinity of Fay Avenue. He stopped at the stop sign for Fay Avenue on Airport Road upon which he was proceeding east. He then looked to his right toward the parking lot adjacent to McGlasson's pharmacy and saw two white men walking out of the driveway which led from the basement of the building. He was about sixty-five feet away at the time. The driveway was about forty to forty-five feet long, and the two men were about half the distance between the building and Fay Avenue when he saw them. It was dark at the time, but the corner was well lighted and there was a floodlight on the building which partially lighted the parking lot. Officer Carter immediately turned right and followed the men as they were walking south on Fay Avenue to a car which was placed one hundred to one hundred and ten feet south of the building. One of the men was carrying a plastic type laundry basket, which looked something like a bushel basket and which had something in it. Carter stopped and got out of the police car as the men were getting into the rear of the 1953 Chevrolet which Carter observed had no license plates on it. He then observed that there was someone seated in the driver's seat of the car, whereupon he ordered the three men out of the car (Pope, Perrin and the defendant), placed them under arrest and called for assistance. Carter identified defendant as one of the men whom he saw walking down Fay Avenue from the driveway. After other officers arrived, Carter telephoned Mr. McGlasson, and when he arrived he went with him and Major Bray to the building where he saw a window in the rear thereof which was partially open--six to eight inches from the bottom. The window showed no signs of being forced. The three then went into the building through the open basement door, then to the upstairs where they found that door unlocked. Carter saw the safe lying down with the door pried and ripped off of it and papers, bottles and containers were strewn about. The door which led from a doctor's waiting room to the drug store had been forced open by means of some bar--it showed pry marks on the door, with damage above the lock to the right of the door and on the door jam. The open window showed no marks of being pried open, and Major Bray testified later that he could find no latent fingerprints upon the window or anywhere else.
After the three men were arrested the Chevrolet with contents intact was impounded and taken to the front of the police station where the automobile and contents were processed as evidence. In the car were a large nail bar, a sledge hammer, flashlight, the drugs and medicines (State's Exhibits 1 through 8), money in a plastic clothes basket which Officer Carter saw being carried to the car. In a plastic bucket were also four cartons of Pall Mall and five cartons of Chesterfield cigarettes; there was $138.00 paper currency, a ten dollar roll of quarters, sixteen cents in change and several checks in a white bag found in the automobile.
By stipulation it was agreed that the laboratory tests made by officers Brocksmith and Storer of the St. Louis Police Department showed that the paint from Mr. McGlasson's safe door matched that found upon a blue pry bar, a red/black pry bar, a brown work glove and three socks, all of which were found in the Chevrolet automobile at the time of defendant's arrest.
Major Bray of the Berkeley Police Department was called as a witness for defendant and testified that $169.00 found upon defendant's person at the time of the booking was returned to defendant as his property.
Defendant testified in his own...
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...as to the effect of or weight to be given by the jury to circumstantial evidence. State v. Michael, Mo., 361 S.W.2d 664; State v. Regazzi, Mo., 379 S.W.2d 575. However, the giving of such instruction is not mandatory when at least part of the evidence was direct. State v. Huff, 353 Mo. 791,......
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...defendant properly requests the instruction under Rule 20.02. See State v. Hoskins, 515 S.W.2d 502, 503 (Mo.1974); State v. Regazzi, 379 S.W.2d 575, 579 (Mo.1974) (per curiam). The respondent does not question that settled Missouri law requires that (if properly requested) MAI-Cr 3.42 be gi......
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... ... By so doing, the court did not infer that there was direct evidence in the case. The refusal to give this same instruction in a wholly circumstantial evidence case was held to be reversible error in State v. Regazzi, Mo., 379 S.W.2d 575, 578(1, 2). The case of State v. Culbertson, Mo.App., 74 S.W.2d 375 which was cited by appellant was examined. It does not apply to this contention ... Appellant's assignment 4 is that the court erred in giving Instruction No. 4 in that the instruction is ... ...
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