State v. Rhodes, 51922

• Decision Date: 14 November 1966
• Docket Number: No. 51922,No. 1,51922,1
• Citation: 408 S.W.2d 68
• Parties: STATE of Missouri, Respondent, v. Charles Ganing RHODES, Appellant
• Court: Missouri Supreme Court

Page 68

408 S.W.2d 68

STATE of Missouri, Respondent, v. Charles Ganing RHODES, Appellant.

No. 51922.

Supreme Court of Missouri, Division No. 1.

Nov. 14, 1966.

Norman H. Anderson, Atty. Gen., Jefferson City, Joseph S. Boland, Sp. Asst. Atty. Gen., Clayton, for respondent.

William J. Shaw, William H. Crandall, Jr., Clayton, for appellant.

HOUSER, Commissioner.

Charles Ganing Rhodes was charged with and convicted of one prior felony conviction and burglary second degree and stealing. He was sentenced to three years' imprisonment on each charge, the sentences to run concurrently. He has appealed, claiming that the Habitual Criminal Act is unconstitutional; that the Court erroneously defined the word 'doubt' in an instruction, and that the State failed to make a submissible case of burglary second degree.

The constitutionality of the Habitual Criminal Act is challenged on the ground that it deprives the defendant of his right to have a jury decide the factual issues in a criminal cause. 'This and other similar attacks upon the constitutionality of § 556.280 have been ruled adversely to the defendant in the following cases: State v. Morton, Mo.Sup., 338 S.W.2d 858; State v. Griffin, Mo.Sup., 339 S.W.2d 803; State v. Wolfe, Mo.Sup., 343 S.W.2d 10; State v. Williams, Mo.Sup., 343 S.W.2d 58, and State v. Brownridge, Mo. (Sup.), 353 S.W.2d 715. Since the point has been previously decided by this court we need not extend this opinion by further discussion thereof.' State v. Deutschmann, Mo.Sup., 392 S.W.2d 279, 286.

Instruction No. 10, on the presumption of innocence and reasonable doubt, concluded with a paragraph in which the jury was instructed that "* * * a doubt to authorize an acquittal on that ground ought to be a substantial doubt,' touching the defendant's guilt, and not a mere possibility of his innocence.' Defendant claims that this lessens the burden of proof on the state; presupposes a legal impossibility, and is a comment on the evidence. These same complaints were ruled adversely to the defendant in State v. Drake, Mo.Sup., 298 S.W.2d 374. Upon reexamination of the point we find no reason to change our opinion and reiterate what was said there.

The contention that the state failed to make a submissible case of burglary second degree is based solely on the contention that there was a failure to prove forcible entry, either directly or circumstantially. Defendant points but that there were no pry marks or other physical damage to any entryway; that the state did not show that all doors and windows were checked before the last person left the house prior to the entry; and that there was no other evidence of the exercise of force to effect an entry into the house. Defendant cites State v. Ewing, Mo.Sup., 298 S.W.2d 439, for the rule that to sustain a charge of second degree burglary it is necessary to show directly or circumstantially that some force was used to effect entry. The distinguishing difference between the facts in State v. Ewing and this case is that in Ewing there was no evidence that the door and window were closed prior to the time defendant entered the building, whereas here there was evidence that the door was locked when the workman left and defendant himself admitted that the door was closed when he and the other two men arrived on the...