State v. Simmons, 57062
| Court | United States State Supreme Court of Missouri |
| Writing for the Court | TIMOTHY D. O'LEARY |
| Citation | 494 S.W.2d 302 |
| Parties | STATE of Missouri, Respondent, v. John Randall SIMMONS, Appellant |
| Docket Number | No. 57062,No. 2,57062,2 |
| Decision Date | 14 May 1973 |
Page 302
v.
John Randall SIMMONS, Appellant.
Page 303
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.
Robert A. Hampe, St. Louis, for appellant.
TIMOTHY D. O'LEARY, Special Judge.
Defendant waived a jury and was tried by the court and found guilty of the crimes of Burglary Second Degree and Stealing in connection with the burglary and was sentenced by the court to five years on each charge with the punishment running concurrently.
In a single point the appellant asserts generally three grounds of error and those are: that the court erred in denying appellant's motion for judgment of acquittal; that the court erred in denying appellant's motion for new trial and that the judgment is against the weight of the evidence.
It would serve no useful purpose to recite our rules relative to the preservation of error in the motion for new trial and in the points relied on in the brief and the defendant's failures in these respects. Suffice it to say that we consider this single point as having raised the sole issue that the trial court erred in refusing to sustain defendant's motion for a judgment of acquittal at the close of all the evidence on the theory that the evidence was insufficient to make a submissible case.
In reviewing a contention that the state failed to prove essential elements of a charged offense, all evidence tending to support the judgment is considered as true and all inferences favorable to the judgment are indulged. State v. Harris, 452 S.W.2d 577 (Mo.1970).
The weight of the evidence in either a court or a jury tried case is not reviewable by an appellate court. State v. Talbert, 454 S.W.2d 1 (Mo.1970).
With these principles in mind we set forth the evidence.
The building burglarized was a combination snack bar and gift shop located on a barge that was moored on the St. Louis Riverfront and was connected to the shore by two gangplanks approximately sixty
Page 304
feet long. This snack bar and gift shop were operated in conjunction with a World War II United States Navy minesweeper called The Inaugural, which was being used as a museum with an admittance charge. The minesweeper was anchored and attached to the barge and was on the river side of the barge. The barge was being used as a dock and contained only the one building mentioned. The customer windows for the snack bar and gift shop faced the river and the minesweeper. There was one deck on the barge and four decks on the minesweeper.The two gangplanks or ramps are the only two means of access from the shore to the barge and minesweeper.
Approximately one-half way from the shore to the barge, or 30 feet, there was a locked gate with fences extending on either side of it beyond the width of the gangplank and with barbed wire on the sides and at the top of the eight to ten foot gate.
The evidence was that at 9:00 p.m. the barge and shop were secure with the windows to the snack and gift shop closed and the gates on both...
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