State v. Robinson

• Decision Date: 08 June 1959
• Docket Number: No. 47109,No. 1,47109,1
• Citation: 325 S.W.2d 465
• Parties: STATE of Missouri, Respondent, v. Robert ROBINSON, Appellant
• Court: Missouri Supreme Court

Page 465

325 S.W.2d 465

STATE of Missouri, Respondent, v. Robert ROBINSON, Appellant.

No. 47109.

Supreme Court of Missouri, Division No. 1.

June 8, 1959.

Motion for Rehearing or for Transfer to Court en Banc Denied

July 13, 1959.

Joseph Langworthy, Pacific, for appellant.

John M. Dalton, Atty. Gen., John C. Baumann, Asst. Atty. Gen., for respondent.

HOLLINGSWORTH, Judge.

Defendant has appealed from a sentence of imprisonment in the State Penitentiary for a term of two years for the crime of burglary in the second degree and a term of two years for the crime of larceny in connection with said burglary. Section 560.110 RSMo 1949, V.A.M.S. (to which revision all statutory references herein are made unless otherwise indicated).

Errors assigned are: (1) that no submissible case was made for reasons that (a) the crime of larceny was not defined by any statute in force at the time of the alleged commission of the alleged burglary and theft, (b) the court had no jurisdiction of the person of defendant, (c) the evidence was insufficient to show any breaking or entering into the alleged burglarized premises or the theft of any of the property allegedly stolen from the premises by defendant; (2) the admission and exclusion of certain evidence; (3) the giving and refusal of certain instructions; and (4) denial by the court of sufficient time for argument as requested by counsel for defendant.

The information was filed on July 17, 1956. Thereafter, following numerous continuances, the cause was set for trial in the Circuit Court of the County of St. Louis on May 20, 1958. Prior to said date, however, defendant was convicted in the Court of Criminal Corrections of the City of St. Louis of the crime of malicious destruction of property, for which he was sentenced to and confined in the jail of the City of St. Louis. On May 19, 1958, the Prosecuting Attorney of St. Louis County filed in said county a petition for writ of habeas corpus ad prosequendum seeking the production of defendant for trial in the Circuit Court of St. Louis County on May 20, 1958, which petition was sustained. Pursuant to writ of habeas corpus ad prosequendum so issued, defendant was ordered produced to the Circuit Court of St. Louis County for trial in the instant case. Thereafter, on May 20, 1958, the warden of said city workhouse did so produce defendant in the Circuit Court of St. Louis County. Defendant, over objection of his counsel, was then and there placed upon trial, during the progress of which trial he was in the custody of the Sheriff of St. Louis County.

The only evidence in the case was that adduced in behalf of the State. It warrants a finding of the following facts:

Merle-Jung, Incorporated, a corporation engaged in the general contracting business, maintained during the month of June, 1956, an office in a shed at 8900 Page Avenue, in St. Louis County, Missouri, in the performance of work it was doing for the Goodyear Tire Company. The shed was about 12 feet wide and 20 feet long. The openings therein were four windows and an entrance door, in which door there were six panes of glass. Said shed was also used for the storage of numerous hand tools used on the job. Harold Flack was in charge of the work and the defendant was employed there as a laborer. On the afternoon of Friday, June 8, 1956, at about 4:00 p. m., defendant was laid off from his work and given a check in payment of his wages, whereupon he left the premises in a 1948 or 1950 black Plymouth sedan. At 5:30 p. m., Flack, the last man to leave the premises that day, checked the tools in the shed, which, among other tools, included a Thor electric hammer of the value of $200, and closed and locked the door and all windows. Upon arrival at the shed on Monday morning, June 11, 1956, Flack discovered that the glass had been broken from the door and the interior of the premises was disarranged. The Thor electric hammer, which he had left in the shed when he closed and locked the door, and an electric grinder, a 'coke' machine, a half case of Pepsi-Cola, and 60 pennies had been taken from the shed. Flack next saw the hammer, identified by him at the trial as State's Exhibit 'A', at the University City Police Station when it was shown to him by a police officer at about 2:30 p. m. on June 11, 1956, at which time and place he also saw and identified the defendant. The hammer was delivered to Flack at that time.

At about 3:20 a. m., on Saturday morning, June 9, Police Officers Stokes and Kayser of the University City Police Department, while riding in a police car on patrol duty, saw defendant driving east in a black 1950 Plymouth sedan. His conduct was such that they tried to stop him, but he increased his speed. They pursued him, sounding their siren and turning on a red light. Defendant turned northward, thence west, where his car struck a tree and skidded to a stop in a yard. Defendant fled from the car. Shortly thereafter, he was apprehended hiding under a school bus. He was advised that he was under arrest. He came out from under the bus and again fled and was finally captured as he hid in a tool shed. Defendant was taken to the police station and an examination of the abandoned Plymouth was made. Found therein was a Thor electric hammer. Defendant said it belonged to him. State's Exhibit 'A', shown to Officer Stokes at the trial, was identified by him as the hammer found in the Plymouth car. Police Officer Gorman interrogated defendant at the police station and defendant stated that he had stolen a Thor air-hammer on June 8, 1956, from in front of a tool shed of Merle-Jung, where he had been employed.

Following the close of the evidence in behalf of the State, defendant asked the court to instruct the jury to disregard all inferences that could be drawn from any reference to State's Exhibit 'A' because it was never introduced into evidence by the State. The court, over objection of defendant, permitted the State to reopen its case in chief and to formally place said exhibit in evidence. Defendant again objected upon the ground that: '* * * there was no chain of possession shown that this is the same Exhibit A that was in this courtroom yesterday. And I would like to offer evidence to show whatever was in the courtroom yesterday was abandoned in the courtroom with nobody here last night.' The court denied the offer of proof.

Defendant first contends that 'since the crime of larceny was not defined by any statute in force at the time of alleged commission of the crime charged, the information is defective' and that the submission of that issue under Instruction 2 was error. His argument runs: In the enactment of new Sec. 560.156 in 1955, wherein the General Assembly (Laws 1955, p. 507) defined the crime of 'stealing', it failed to modify Sec. 560.110 in force at the time of the alleged commission of the burglary and larceny charged in the information, by substitution of the crime of 'stealing', as defined in Sec. 560.156, in lieu of the crime of larceny, as set forth in Sec. 560.110; and that, therefore, there was no statute defining the crime of larceny, in force in Missouri; and that the larceny charged in the information fails to allege that the property was taken without the consent of the owner.

The information charged (1) burglary in the second degree and (2) that the defendant 'feloniously and burglariously did steal, take and carry away, with the felonious intent then and there to permanently deprive the owner of the use thereof and to convert the same to his own use' the property priorly described herein. Both of the contentions have been decided adversely to defendant by our recent cases of State v. Zammar, Mo., 305 S.W.2d 441, 445, and State v. Woolsey, Mo., 324 S.W.2d 753, in which we held that larceny was included within the crime of stealing, as the latter term was defined in Sec. 560.156, and that an information charging burglary and larceny in connection with such burglary, as authorized by Sec. 560.110, was valid. Instruction 2 submitted the issue of larceny of the Thor hammer in substantially the same wording as that employed in the information. Section 560.110, in effect at the time of the alleged commission of the burglary and larceny with which defendant was charged (and after its amendment in 1957 by substitution of the word 'stealing' for the word 'larceny'), fixed the punishment for larceny (which comes within the definition of stealing as set forth in Sec. 560.156) when committed in connection with burglary at imprisonment in the penitentiary for not less than two nor exceeding five years. Consequently, Sec. 560.110 not only authorized the trial of defendant for the crime of burglary and larceny but it also governed the punishment to be assessed by the jury if it found him guilty of both burglary and larceny.

Defendant next contends that the court lacked jurisdiction of the person of defendant and that it was error and in violation of the due process clause, Article I, Sec. 10, of the Constitution of Missouri, V.A.M.S., for the court to proceed with his trial after he had been brought into court under a writ of habeas corpus ad prosequendum, because said 'writ was issued in the wrong county in violation of Sec. 532.030', without notice and without hearing. Section 532.030, however, relates to the issuance of a writ of habeas corpus sought by a person seeking release from custody on grounds that he is unlawfully restrained of his liberty, and which provides that the application shall, in the first instance, be made to the circuit judge of the county in which he allegedly is wrongfully held in custody. Obviously, that section is not applicable in the instant case. Defendant also cites Sec. 541.140, which states that a defendant in actual confinement 'shall be removed to the jail of the...