State v. Rose

• Decision Date: 10 June 1968
• Docket Number: No. 52713,No. 2,52713,2
• Citation: 428 S.W.2d 737
• Parties: STATE of Missouri, Respondent, v. James Curtis ROSE, Appellant
• Court: Missouri Supreme Court

Page 737

428 S.W.2d 737

STATE of Missouri, Respondent, v. James Curtis ROSE, Appellant.

No. 52713.

Supreme Court of Missouri, Division No. 2.

June 10, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, Sam F. Hamra, Jr., Sp. Asst. Atty. Gen., Springfield, for respondent.

Bernard C. Rice, Blanton, Blanton & Rice, Sikeston, for appellant.

EAGER, Judge.

Defendant was found guilty by a jury of burglary and stealing. Upon a finding by the court of the conviction of a prior felony and service of sentence therefor, defendant was sentenced to concurrent terms of seven and five years. A detailed after-trial motion to set aside the verdict or in the alternative for a new trial, was overruled. We understand from the argument here that defendant did not then intend to appeal; he was represented by most diligent appointed counsel. However, upon a change of heart, not unusual after supposedly expert advice from associates in confinement, he filed here a request for a special order permitting a late notice of appeal under Rule 28.07 V.A.M.R.; this was granted. The trial court allowed defendant a free transcript and re-appointed his trial counsel for the prosecution of the appeal.

The brief of defendant does not directly question the sufficiency of the evidence, but the points raised require a somewhat detailed review. At about 11:30 P.M. on April 29, 1966, Patrolman Robert E. Atkinson, Jr., of the Sikeston police force, received a radio call that a break-in was in progress at Wright's Jewelry Store on New Madrid Street. He immediately drove there, stopped, and found defendant bending over in front of the door of the jewelry store 'laying down a white sack and a crowbar'; he knew the defendant at and prior to this time and identified him at the trial. There was a 'foyer' or entranceway at the front of the store about 4 feet deep and extending out to the sidewalk; defendant was in this entranceway; the glass window on one side of the entranceway had been broken in a strip about 8 inches high and 1 1/2 to 2 feet long; inside the window only one or two articles were left in the immediate area of the break; Atkinson placed defendant under arrest and radioed for help; at one time defendant tried to walk off. Officer Wallace soon came and took charge of the defendant. The owner, Mr. Wright, was called and soon arrived. Atkinson wrote a label on a piece of note pad and placed it around the crowbar; he wrote on the white sack '4/28/66, 11:30 P.M., Wright's Jewelry Store,' with his initials. When Mr. Wright (Charles Raymond) came they took the sack into the jewelry store and emptied its contents on a counter, where Mr. Wright made an inventory or list of the contents, and then replaced them in the sack. Atkinson took the sack and its contents and the crowbar to the Police Station, gave them to the Chief, and they were placed in the 'evidence file,' a cabinet; he later saw these articles on the day of the preliminary hearing when he got them from that file and took them to court, returning them later. Atkinson did not examine the contents of the sack but saw all of the articles on the night of the occurrence; at the trial he identified the crowbar from the label which he had written and placed on it (saying also that he made a mistake in the date), and he identified the white sack from his own markings upon it.

Mr. Wright had operated the jewelry store for 8 years; he had closed and locked the front and back doors at about 5 P.M. on the day in question. He and his employees customarily took all diamonds out of the display windows when the store was closed for the night and replaced them with less expensive articles. He kept a 'perpetual inventory' of the watches in his stock and he produced the book. He identified 2 blue boxes and the 2 watches in them as having come from his store; he did this primarily by means of the tags which had been placed on the watches by the manufacturer and which had remained on them. On the reverse sides of these tags he had made various entries in his own handwriting. He also testified that he had identified those watches on the night of the break-in, and that they were the same ones. He testified also that he not only identified the tags, but the watches themselves. The watches, the crowbar and the sack were received in evidence; the value of the watches was.$39.95 each.

The first point made by defendant is that there was no sufficient "chain of possession" shown as a basis for a proper identification of the crowbar, the sack, the two boxes and the watches. On the evidence which we have outlined we rule against the contention. It is not necessary that some witness must have continually watched an exhibit or kept it in his personal possession. The purpose of such a requirement is to prevent tampering or alteration of exhibits or any substitution. Here the exhibits were all placed in a cabinet regularly used for exhibits, they were seen and taken to court later by Officer Atkinson and they were then replaced in the file. The contention that the crowbar itself should have been marked rather than labeled, is too technical to be of substance. The sack was most specifically identified. There is some contention that Mr. Wright's identification was of the blue boxes and the tags, and not of the watches. We hold that he sufficiently identified the watches, and indeed did so very specifically. All of the exhibits were properly admitted.

Defendant cites the case of State v. Moxley, 102 Mo. 374, 14 S.W. 969, 15 S.W. 556 (1890). There, the charge was that the defendant had murdered his wife by breaking one or more vertebrae in her neck (all of the evidence being circumstantial). The court held that a piece or pieces of vertebrae produced by the coroner were improperly admitted; an autopsy had been held. The coroner had apparently brought to the trial in his pocket two different sets or pieces of bones; he testified that he had initially turned over the piece which he then sought to identify to one person, had received it back from another person, and although he thought that they were the same bones, he had no marks or other means of identification, and testified himself that "it will require other evidence to identify it." That situation is not at all comparable to ours.

In State v. Thomas, Mo., 360 S.W.2d 694, it was claimed that an electric drill taken by the police (with other tools) from the defendant's truck which had been parked, unlocked, in front of the police station for several early morning hours, was not properly admissible, although positively identified as one owned and kept by the burglary victim. Defendant admitted his ownership of the other tools. On that contention the court said, at loc. cit. 698: 'The inference sought to be thus drawn was that it may have been tampered with and that things found in it had no necessary connection with the defendant. On the merits this question goes to the weight of the evidence and not...