State v. Sallee

Decision Date13 January 1969
Docket NumberNo. 53306,No. 1,53306,1
Citation436 S.W.2d 246
PartiesSTATE of Missouri, Respondent, v. John Richard SALLEE, Appellant
CourtMissouri Supreme Court

Norman H. Anderson, Atty. Gen., Jefferson City, Richard G. Altobelli, Special Asst. Atty. Gen., St. Louis, for respondent.

Thaine Q. Blumer, Ronald P. Zolotor, Blumer & Wright, Kansas City, for appellant.

ROBERT G. DOWD, Special Judge.

The defendant was charged by information with burglary, second degree, and stealing. Sections 560.045 and 560.110, RSMo 1959, V.A.M.S. A jury found him guilty as charged and assessed his punishment at imprisonment for seven years for burglary and five years for stealing. Defendant's motion to set aside the verdict and to enter judgment of acquittal or in the alternative for a new trial was overruled and the court sentenced him in accordance with the verdict, the sentences to run consecutively. Defendant appeals.

The evidence tends to show that the home of Mr. and Mrs. Robert D. Jennings located in Kansas City, Missouri, was broken into sometime between 6:30 p.m. on December 20, 1966, and 12:30 a.m. on December 21, 1966. That the window of the side door was broken and the house had been completely ransacked. That personal property valued at about $1,200.00 was stolen out of the dwelling. Items stolen included a packet of credit cards. One credit card stolen was for Sears, Roebuck & Company. That on December 21, 1966, at about 9:30 a.m. Mrs. Jennings notified Sears, Roebuck & Company of the theft of the credit card. That on December 21, 1966, at about 10:30 a.m. the defendant purchased a number of items from the Sears, Roebuck & Company Cleveland Avenue store using Robert D. Jennings' credit card. He was identified by two salesmen. The defendant left the store without the purchased items after he was told that the sales had to receive a credit approval. There were a number of purchases made at another Sears, Roebuck & Company store on December 21, 1966, wherein the Jennings' credit card was used.

Based upon the salesman's description of the defendant and an identification of a police photograph, the defendant was arrested on December 22, 1966, at about 2:00 p.m. in a restaurant. When the police started to leave the restaurant with the defendant, he dropped a paper which was a clipping out of the yellow pages of the telephone book. The clipping was a listing of the Sears, Roebuck & Company stores in the area. The defendant had in his possession eight credit cards belonging to Robert D. Jennings and an application for a duplicate Missouri state operator's license dated December 21, 1966, in the name of Robert D. Jennings. Mr. Jennings stated that the signature on the application for a duplicate operator's license was not his signature. The defendant had numerous other credit cards in his possession none of which was issued in defendant's name.

The defendant told Officer Clyde Hickman that he had purchased these credit cards from a colored person on the street during the evening of December 21, 1966, for the purpose of making purchases. That he did not know this person's name nor had he ever seen him before. The defendant did not describe or identify this person.

The defendant consented to a search of his premises and signed a waiver for the search. At defendant's premises the police found items of clothing which defendant admitted purchasing at a Sears, Roebuck & Company store with the Jennings' credit card. Defendant also admitted purchasing the coat and boots he was wearing with the Jennings' credit card. The defendant further stated to the police that he attempted to make purchases at the Sears, Roebuck & Company Cleveland Avenue store on December 21, 1966, but 'they got on to him' and he left the store without the purchases but with the credit card.

The defendant did not testify. The only witness called for the defendant was Police Corporal John E. Hill, one of the arresting officers, who stated that he did not ask nor did the defendant offer any explanation to him as to where he got the credit cards.

The appellant contends by assignment 2 that the verdict of the jury was unsupported by sufficient evidence in that the evidence only showed that the appellant had possession of the alleged stolen property, and the evidence showed an explanation of such possession through the testimony of the State's own witnesses who testified that the appellant had stated he had purchased the credit cards.

'In considering the sufficiency of the State's case after a verdict of guilty, 'the court accepts as true all of the evidence in the record tending to show defendant's guilt, whether the same be circumstantial or direct in nature, together with all favorable inferences reasonably to be drawn therefrom. Defendant's contradictory evidence, if any, is to be disregarded. If a submissible case is made out, the truth of the testimony and the reasonableness of the inferences to be drawn are exclusively for the jury. State v. Brewer, Mo.Sup., 325 S.W.2d 16, 20; State v. Morris, Mo.Sup., 307 S.W.2d 667, 668.' State v. Armstrong, Mo., 361 S.W.2d 811, loc. cit, 813.' State v. Webb, Mo.Sup., 423 S.W.2d 795, 799(6).

The general guide for testing the sufficiency of circumstantial evidence is whether the facts and circumstances relied upon by the State are consistent with each other and with the hypothesis of defendant's guilt, and are inconsistent and irreconcilable with his innocence, and point so clearly and satisfactorily to his guilt that they exclude every reasonable hypothesis of innocence. State v. Murphy, 356 Mo. 110, 201 S.W.2d 280, 282; State v. Durham, Mo.Sup., 367 S.W.2d 619, 621(1); State v. McGlathery, Mo.Sup., 412 S.W.2d 445, 447(1, 3).

The issue presented by appellant's assignment 2 is whether the evidence in this case meets this test.

'It has long been the rule that an inference of guilt is permissible from the possession of property recently stolen in a burglary, and the inference exists both as to the burglary and the stealing. State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 455; State v. Oliver, 355 Mo. 173, 195 S.W.2d 484; State v. Hagerman, 361 Mo. 994, 238 S.W.2d 327; State v. Reagan, Mo., 328 S.W.2d 26. However, to authorize the inference of guilt, the defendant's possession of the stolen property should not be too remote in point of time from the crime, and it should be a personal possession, exclusive, distinct and conscious, and unexplained. 'Where the character of defendant's possession is such as to fulfil these requirements, it is evidence of his guilt, connecting him with the commission of the burglary, and, in the absence of countervailing evidence, may be sufficient to sustain a conviction of burglary.' State v. Watson, Mo., 350 S.W.2d 763, 766.' State v. Durham, Mo.Sup., 367 S.W.2d 619, 621, 622(2, 3).

As to appellant's contention that the appellant had explained his possession of the credit card through the testimony of the police officer, the court held in State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 454(7, 8) that the doctrine in this State and elsewhere is that the credibility of the explanation is a question of fact for the jury; and if the jury disbelieves it, the case stands with his possession unexplained. This doctrine was cited approvingly in State v. Durham, supra, 367 S.W.2d l.c. 621, 622(4).

It was likewise held in State v. Tomlinson, 352 Mo. 391, 177 S.W.2d 493, 494(1, 2) that while recent possession of stolen property is not proof of guilt as a matter of law, it is sufficient to submit the case to the jury. State v. Curley, Mo.Sup., 142 S.W.2d 34; State v. Slusher, 301 Mo. 285, 256 S.W. 817; State v. Swarens, 294 Mo. 139, 241 S.W. 934; State v. Kennon, Mo.Sup., 123 S.W.2d 46; State v. Deckard, Mo.Sup., 37 S.W.2d 414.

There is no question in this case concerning the fact of the burglary and the fact of the stealing, nor is there any question as to the fact that the defendant had in his possession eight credit cards stolen less than two days before in the burglary. The fact defendant was seen in possession of the stolen Sears, Roebuck & Company credit card the morning following the burglary; defendant's statement to the police that he had purchased the credit cards from an unknown and unidentifiable colored person the evening of December 21, 1966, when he was using the stolen credit card to make purchases at a Sears, Roebuck & Company store at about 10:30 a.m. on December 21, 1966; the fact that defendant had in his possession a forged application for the driver's license in the name of the victim; the fact that defendant attempted to furtively conceal from the police the possession of a slip of paper from the telephone book with the Sears, Roebuck & Company listings; these facts constituted evidence from which it was permissible for the jury to infer that the defendant participated in both the burglary and the stealing.

All of these facts and circumstances are consistent with each other and are irreconcilable and inconsistent with any reasonable theory of innocence. The second assignment of error is denied.

Appellant contends by assignment 1 that the information was fatally defective in that it was vague and indefinite for the reason that the information did not set out the address of the dwelling house. The appellant contends he was not able to properly prepare his defense and it cannot be pled in bar in a subsequent prosecution.

'The defendant in a criminal case has a right to demand the nature and cause of the accusation, and the indictment or information must be sufficiently definite to enable him to prepare his defense and to constitute a bar to further prosecution for the same offense.' State v. Tandy, Mo., 401 S.W.2d 409, 412, 413(2, 4), Art. 1, Sec. 18(a), Constitution of Missouri 1945, V.A.M.S. The elements of the offense of burglary in the second degree are the breaking and entering of a dwelling house by a person with the intent to commit a felony or to steal...

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