State v. Sims, 51099

• Decision Date: 08 November 1965
• Docket Number: No. 1,No. 51099,51099,1
• Citation: 395 S.W.2d 445
• Parties: STATE of Missouri, Respondent, v. Carl Dennis SIMS and Bill Gene Magruder, Defendants
• Court: Missouri Supreme Court

Page 445

395 S.W.2d 445

STATE of Missouri, Respondent, v. Carl Dennis SIMS and Bill Gene Magruder, Defendants.

No. 51099.

Supreme Court of Missouri, Division No. 1.

Nov. 8, 1965.

Norman H. Anderson, Atty. Gen., Jefferson City, Charles C. Hatley, Asst. Atty. Gen., New Madrid, for respondent.

Hale Brown, Kirkwood, Theodore Schwartz, Clayton, for defendants.

HYDE, Presiding Judge.

Defendants were jointly charged and tried for burglary, second degree, and stealing, under the habitual criminal statute. Secs. 560.070, 560.095, 560.110, 560.156, 556.280; statutory references are to RSMo and V.A.M.S. Defendants were found guilty by the jury and sentenced by the court to imprisonment of seven years for burglary and three years for stealing to run consecutively, and have appealed.

Defendants had separate counsel, employed by them, on arraignment, at the trial and at sentencing, who filed motions for new trial and perfected appeal, the transcript being paid for by defendants. However, no brief has been filed here so we consider all assignments in the motions for new trial in accordance with Criminal Rule 27.20. (See also Rule 28.02, V.A.M.R.) Since the defendants were tried jointly and the assignments made in the separate motions for new trial by each defendant apply equally to the other, we rule all of them as applicable to both.

Defendants were found inside the building of the Dolly Madison Cake Company by officers of the St. Louis County Police Department about 4:25 A.M., March 24, 1963. The police had been called by Thomas H. Patterson, an employee of the Southwestern Bell Telephone Company, who saw the defendants enter. Patterson was in the Telephone Building, south of the Cake Company building (there being a parking lot between the two buildings) when he heard a car door slam. Looking out a window, he saw a car on the side street, west of the parking lot, and saw two figures standing by the car. He said the men 'walked up the street, jumped a fence' and went up to the front door of Cake Company building on the parking lot, 'the main entrance to the store part of the building.' Patterson said: '[A]bout the time they reached the door there was a car coming south on Woodson Road so they ran to the back of the building, back along here to the fence again, and after the car passed they came back to the door and went in.' Woodson Road was on the east side of the two buildings.

Mrs. Lena Helton, Clerk of the Cake Company, closed the store at 7:00 P.M. on March 23, 1963, checked all doors and left after all were locked. She put about $48.00 (tens and ones) under the counter. When the police came, all doors were found locked and Donald E. Marshall, the Division Manager of the Cake Company, was called to come and let them in. They found defendants in the garage part of the building behind the store. They also found a crowbar, a screwdriver and a flashlight there and $64.85 in currency and coin was taken from defendant Sims, including four ten dollar bills and nineteen ones. Defendant Magruder was found to have $2.55. There was no money under the counter; also missing was a roll of postage stamps from the manager's desk and a roll of stamps was found on a truck in the garage where defendants were arrested. There were tool marks on the jamb of the door to the store and there was testimony that this door (made of aluminum) could be opened and locked again with the crowbar and screwdriver. Photographs in evidence showed the condition of the store and the manager's office at the time the police came.

Defendants' testimony was that they and Donald Steinhoff were at Sims' house until about 1:00 A.M. and left in Steinhoff's car, going to a restaurant; that afterwards they had trouble with the car and finally left it and Steinhoff to go to Sims' brother's house when a policeman of St. Ann they knew came up and told them it was too late to be on the streets; that they jumped the fence by the Cake Company parking lot when they saw a car they thought was the car of the policeman who had spoken to them; and that when they came to the Cake Company building they saw lights on the inside of the store, an 'open' sign in the window and the door partly open. Sims testified that he 'just opened the door,' 'hollered, asked if anyone was in there' and 'looked for a telephone,' to call his brother. Defendants had gloves (which would prevent leaving fingerprints) when arrested but Sims explained this saying that he used jersey gloves in his work; that he had two pair, one of which he had loaned Magruder, to wear gloves pushing the Steinhoff car. Sims further testified that the money taken from him was money he had earned working. Magruder testified that he and Sims went to the south door of the bakery in question which was slightly open; that he and Sims went in to make a telephone call; that the door closed behind him and about that time a police car pulled up and when defendants heard police cars coming into the parking lot, they went into the garage so they would not be seen. Magruder said he and Sims waited in the garage for about forty-five minutes until the police came in and arrested them. Defendants denied that the crowbar, screwdriver and flashlight were theirs.

Steinhoff testified that he, Sims and Magruder left Carl Sims' house after mid-night in Steinhoff's car, stopped at an all-night restaurant, and after leaving the restaurant had car trouble; that Sims and Magruder pushed the car, got it started but the car later quit and that Sims and Magruder left walking to go over to Sims' brother's house to get help; that after Sims and Magruder had been gone ten or fifteen minutes the car started and he drove on to pick them up; and that he was picked up by the police who put him in the police car and took him back down to the Dolly Madison store where they had Sims and Magruder inside.

Defendants allege error in refusing to sustain their motions for acquittal at the close of all the evidence on the ground that there was no evidence to show the Interstate Baking Company, a corporation, was the owner of the money alleged to have been taken or was the owner of the Dolly Madison Cake Company. The information alleged breaking into a building, 'the property of the Interstate Baking Company, a corporation, doing business as Dolly Madison Cake Company,' with intent to steal and did steal money, 'the property of said Interstate Baking Company, a cororation, doing business as Dolly Madison Cake Company.' It is also claimed that the evidence was insufficient to show a breaking or entering by either of the defendants or that the money found on Sims belonged to anyone other than himself. There is no merit in these contentions; as to the latter witness Helton testified that the money she put under the counter when she left was the property of the Dolly Madison Cake Company. This money was missing and money in the same denominations was found on Sims. Likewise, the postage stamps from the manager's desk were found in the garage near defendants. The facts shown by the evidence, hereinabove stated, are sufficient to show breaking and entering by defendants with intent to steal and stealing. In this connection error is assigned in admitting testimony of Captain Fred J. Vasel of the St. Louis County Police Department 'that no money was found in a box in the office adjoining the room wherein defendants were arrested.' No reason is given for this assignment and since this testimony showed that after defendants had entered there was no money in the place where Mrs. Helton had left it, we hold this testimony was properly admitted.

Defendants' contention concerning failure to show status or ownership of the Interstate Baking Company likewise is without merit. Some of our early cases did make strict requirements in this regard but they were overruled by State v. Carson, 323 Mo. 46, 18 S.W.2d 457, 461. In that case, we said the statute of jeofails was ignored in the earlier case (then 3908 RS 1919, later 545.030, now Rule 24.11) and held on a charge of selling property mortgaged to a bank that the defendant 'is fully informed of the 'nature and cause of the accusation' without any specific description of the mortgagee incidentally affected.' This principle has been applied in many subsequent cases. In State v. Latham, 344 Mo. 74, 124 S.W.2d 1089, 1090, the information only stated property was stolen from 'Eggers' Garage' and we cited Sec. 3652 RS 1929, later Sec. 546.080, now Rule 26.04, stating in part as follows: 'Whenever on the trial of any felony or misdemeanor, there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof, in the christian name or surname * * * or other description of any person whatsoever of any person whomsoever therein named or described * * * or in the ownership of any property named or described therein, such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had shall find that such variance is material to the merits of the case and prejudicial to the defense of the defendant.' We affirmed conviction ruling 'that said court did not find that the omission from the information of an allegation that Eggers' Garage was a corporation, or if a copartnership an allegation of that fact and the names of the partners, was material to the merits of the case or prejudicial to the defense of the defendant.' As we said in State v. Hedgpeth, 311 Mo. 452, 278 S.W. 740, 741: 'Proof of the appellant's guilt of the crimes charged, or either of them, did not depend upon establishing the fact of the oil company's incorporation, but upon the question as to whether the appellant feloniously broke into the premises of another, and, to establish the larceny, that he stole from such premises the property described in the charge. While the corporate existence of the oil company was alleged in the...