State v. Ross
| Citation | 507 S.W.2d 348 |
| Decision Date | 08 April 1974 |
| Docket Number | No. 1,No. 57386,57386,1 |
| Parties | STATE of Missouri, Respondent, v. Bobby Joe ROSS, Appellant |
| Court | United States State Supreme Court of Missouri |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Bussell, Hough, Greene & Bernhardt, Kenneth W. Johnson, Joe C. Greene, Springfield, for appellant.
HIGGINS, Commissioner.
Bobby Joe Ross, with prior conviction, was charged with burglary, second degree, and stealing. He was convicted by a jury and the court assessed his punishment at imprisonment for seven years for the burglary and five years for the stealing with the terms to run concurrently. Sentence and judgment were rendered accordingly. §§ 556.280, 560.070, 560.110, RSMo 1969, V.A.M.S. (Appeal taken prior to January 1, 1972.)
By information it was charged that Bobby Joe Ross, Guy Bass, Jr., Donald Gene Vineyard, Clifford Wayne Morelock, George Edward Miller, and Michael Buddy Perryman, on January 13, 1971, in Greene County, Missouri, feloniously and burglariously broke and entered Dillard's Department Store with intent to seal, and feloniously stole assorted shirts from Dillard's.
By an amended information filed on the day of trial, Bobby Joe Ross was charged separately as a second offender with the burglary of Dillard's and theft of assorted shirts from the store.
By his Point IV appellant contends the court erred in refusing him a continuance when he learned of the amended information ten minutes prior to trial.
The only changes made by the amended information were the endorsement of a witness who was not called, and the charge of defendant as a second offender, proof of which was not disputed. Appellant asserts some generalities with respect to trial strategy, but does not demonstrate how he was prejudiced by the late filing; and the record demonstrates that defense counsel were fully prepared to plead anew and to try the case.
In these circumstances it may not be said that the court abused its discretion in denying a continuance on account of the new allegations made by the amended information. Rules 24.15, 24.17, V.A.M.R.; State v. Ward, 457 S.W.2d 701 (Mo.1970); State v. Strawther, 476 S.W.2d 576 (Mo.1972).
Appellant makes two attacks on the sufficiency of evidence to sustain his conviction: By Point III he contends he should have had a judgment of acquittal; and by Point VI he contends there was no evidence that defendant acted in concert with any other person to support Instruction 10 on that subject.
Appellant argues that the evidence was insufficient to connect him to the burglary of Dillard's; that it was insufficient to show possession of stolen goods in defendant necessary to an inference that he participated in the burglary and stealing; that evidence by way of soil samples should not have been admitted because it was irrelevant and that it was not of probative value; that the only evidence was circumstantial and was not inconsistent with an hypothesis of innocence; that there was no proof that defendant was at the burglary scene or that he aided or abetted anyone in its commission.
Allen L. Bartle was the warehouse manager for Dillard's Department Store in Springfield, Greene County, Missouri. On Janurary 13, 1971, at 4:30 p.m., he made his usual rounds, checked the doors and locks, locked the front door and left the warehouse. He was informed about 10:30 p.m. that the warehouse had been broken and entered. When he arrived at the warehouse he found that the track door on the west side of the building where boxcars were unloaded had been forcibly opened. Several policeman were in the warehouse, shirts were mission and strewn about the floor, and two stereo sets and a television were mission. Approximately 1200--1300 man's short-sleeved shirts of different colors were mission. All bore Dillard's or Dillard's Brown-Dunkin labels. Neither Bobby Joe Ross nor anyone else had been given permission to enter the warehouse on the evening of January 13, 1971. Mr. Bartle identified a bag of shirts, Exhibit 4, as a number of the shirts found mission on January 13, 1971.
Roy J. Grimes was the store manager of Dillard's in Springfield. On January 13, 1971, he went to the warehouse at 10:30 or 11:00 p.m. He noted the loss of about 1400 shirts and three or four appliances. He had not given Bobby Joe Ross or anyone else permission to enter the warehouse on the evening in question. He, too, identified the bag of shirts as a part of the shirts found missing on January 13, 1971.
Stephen R. Ward was an area manager for Dillard's Department Stores and he, too, identified the sack of shirts as part of the stock of Dillard's of Springfield. He was the store officer who signed the receipt at the police department for return of the bulk of the lost shirts, most of which have now been sold or transferred to other stores. He had not given Bobby Joe Ross or any other person permission to be in the warehouse on January 13, 1971.
Elbert Thompson resided at 425 West Portland in Springfield, Missouri, on January 13, 1971. His home was separated from the residence of Joy Beaver at 433 West Portland by approximately seven feet, three inches. His bedroom window is opposite a window in the garage at 433 West Portland. Between 9:00 and 9:30 p.m., he and his wife drove into their driveway and noticed two strange cars in the neighboring driveway. A short time later they heard a noise and, upon looking through their bedroom window, saw four men in the garage He called the police and noted their arrival at which time only four of the six persons were present.
Helene Thompson, wife of Elbert, also observed the events at 433 West Portland. She also had seen a car without lights back to the garage and observed six individuals altogether.
Joy L. Beaver resided at 433 West Portland on January 13, 1971. She left for work at 5:45 p.m. to be gone until after 2:00 a.m., and no one else, including Bobby Joe Ross, was in the home. She had never given him permission to be in her home. Later that night she saw bags like the bag of shirts in eivdence in her home. She had no prior knowledge they were there. She made no claim to the shirts and consented to their removal from her home by the police. She did know a 'Red' Morelock and he was always welcome in her home; but she had not given anyone permission to bring shirts into her home. Her home was so constructed that a person could go from the garage into the house proper without going outside.
George H. Brinkman of the Springfield Police Department went to 433 West Portland on January 13, 1971, in response to a dispatch 'on the call of a possible house burglary at 9:46 p.m.' He arrived in a shourt time and found other officers already present. He next saw this subject coming through the kitchen. 'He observed me through the front door and he immediately turned quickly and proceeded back into the house.' Officer Brinkman followed, apprehended the subject in the area between the kitchen and dining room, and 'placed him under arrest for investigation of burglary and larceny.' Officer Brinkman then went into the garage and saw 'sacks of shirts,' one of which was the sack entered in evidence; they bore labels of Dillard's stores. Officer Brinkman returned from the garage into the utility room and Altogether, four individuals were found in the house, one of whom was Bobby Joe Ross. Officer Brinkman had seen all four individuals on several different occasions 'in the company of one another.' At the time the four individuals were arrested, the shirts were in the garage and were taken by the police as evidence.
George Larbey, also a Springfield policeman, with another officer, went to 433 West Portland around 9:30 p.m. pursuant to 'a call of a possible house burglary in progress.' When he arrived, Officer Woods was at the rear of the house and Officer Brinkman was at the rear corner going to the front. He looked through the window into the garage and saw two persons whom he recognized. He went into the house and found an individual 'hiding behind the couch in the living room' and placed him under arrest. Altogether, four persons were arrested, one of whom was Bobby Joe Ross who was arrested by Detective Crocker 'hiding in the closet under some clothes.' He had seen Bobby Joe Ross with the other three persons on at least one previous occasion. The shirts had been found in the garage at the time of the arrest of Bobby Joe Ross.
Detective Ray Crocker went to 433 West Portland on January 13, 1971, when 'called on the radio that there was a burglary in progress.' Upon arrival he went to the front door and...
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