State v. Simmons
| Decision Date | 14 May 1973 |
| Docket Number | No. 57062,No. 2,57062,2 |
| Parties | STATE of Missouri, Respondent, v. John Randall SIMMONS, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.
Robert A. Hampe, St. Louis, for appellant.
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 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 gangplanks locked.
Two police officers were advised of prowlers on The Inaugural and arrived at the scene around 6:10 a.m. when it was just breaking daylight.
When they arrived they observed two men at the fenced-off gate on the gangplank. One was on the barge side of the fence and the other was on the shore side of the fence. The man on the barge side of the fence was handing some items to the man on the shore side of the fence. These items consisted of an adding machine and numerous souvenir articles such as hats, ashtrays and the like, all of which were later identified as property from the snack bar and gift shop.
Immediately after noticing the two men on the gangplank the officers observed defendant standing on the first deck of the minesweeper to their left of the snack bar facing the gangplank where the officers and the other two males were located. When the officers yelled at the defendant to come off the boat the defendant turned around, ran and climbed up and inside the boat and concealed himself. The officers pursued the defendant and arrested him. There was no evidence that defendant had any of the stolen items in his possession.
The screen and window of the snack bar had been forced open. The defendant was the only witness for the defense and he testified that he and his two friends had been drinking that evening and decided to go on board the minesweeper. That they climbed over the fence that was across the gangplank and went into the barge and boat. Defendant denied being involved in the burglary and stealing...
To continue reading
Request your trial
-
State v. Hunter
...in determining mitigating circumstances. The weight of the evidence is not subject to review by an appellate court. State v. Simmons, 494 S.W.2d 302, 303 (Mo.1973). Here the trial judge heard defendant's statements of prior drug abuse as well as his statements that such abuse would continue......
-
Anderson v. Mutert, 41455
...State v. West, 575 S.W.2d 257, 258 (Mo.App.1978). See Dieckmann v. Marshall, 457 S.W.2d 242, 244(3) (Mo.App.1970) and State v. Simmons, 494 S.W.2d 302, 303 (Mo.1973). A cause of action accruing to a party for loss of consortium is separate and distinct from that of the party's spouse suffer......
-
State v. Tash
...These facts clearly show flight and concealment of the defendant, and the evidence was admissible on the authority of State v. Simmons, 494 S.W.2d 302 (Mo.1973), and State v. Barry, 501 S.W.2d 515 (Mo.App.1973). Again, the issue of the use of this evidence on argument is attacked, but must ......
-
State v. Cooper, 10173
...and conduct were clearly relevant to the issue of defendant's guilt of the murder of Williams. Flight is evidence of guilt. State v. Simmons, 494 S.W.2d 302 (Mo.1973). Evidence of another crime committed while in the process of flight is admissible. State v. Bevineau, 460 S.W.2d 683 (Mo.197......