State v. Smith

• Decision Date: 11 March 1963
• Docket Number: No. 1,No. 49522,49522,1
• Citation: State v. Smith, 365 S.W.2d 505 (Mo. 1963)
• Parties: STATE of Missouri, Respondent, v. Lawrence SMITH, Appellant
• Court: Missouri Supreme Court

Page 505

365 S.W.2d 505

STATE of Missouri, Respondent, v.Lawrence SMITH, Appellant.

No. 49522.

Supreme Court of Missouri, Division No. 1.

March 11, 1963.

Maurice B. Soltz, Kansas City, for appellant.

Thomas F. Eagleton, Atty. Gen., Pendleton Goodall, Jr., Sp. Asst. Atty. Gen., Jefferson City, for respondent.

DALTON, Presiding Judge.

Defendant was charged under the Habitual Criminal Act with the offense of burglary, second degree, and stealing.On trial he was found guilty of the offenses charged and the court assessed defendant's punishment at five years' imprisonment for the burglary and five years for stealing, the sentences to run consecutively.SeeSections 560.045,560.110,560.156and556.280 RSMo 1959, V.A.M.S. Defendant has appealed and filed a brief in this court wherein the only error assigned is that the court erred in giving InstructionNo. 8, an instruction setting out forms of verdict.Other assignments of error set out in the motion for new trial are therefore waived.Supreme Court Rule 28.02.

The State's evidence tended to show that on January 13, 1962, Jesse Randle occupied ApartmentNo. 402 on the fourth floor of an apartment building located at 1317 Troost Avenue in Kansas City, Jackson County, Missouri; that about 7:30 a. m. on that date, when he left for his work, he locked each of the two front doors of his apartment.The locks consisted of padlocks and hasps, the hasps being of the type that, when closed and padlocked, it was impossible to remove the screws holding the hasps, and the hasps could be removed only by prying them off.Upon returning to his apartment about 6 p. m. on the day in question, Randle observed that his apartment doors were both open and that, although the padlocks were still fixed to the hasps, the hasps had been pried off.Access could only have been obtained to the apartment by the forcible removal of the hasps and padlocks from both an outer and an inner door.On inspection of his apartment Randle discovered that his brown plastic Admiral table radio and his dark brown 'Hi-Fi' set, described as a Motorola, were missing.They were in his apartment when he left home that morning.He had not given anyone permission to enter his apartment that day or to remove any of his property.The value of the radio was $5 and the value of the 'Hi-Fi' set was about $20.They were never recovered.

Randle was well acquainted with defendantLawrence Smith and had known him for some five or six years, since at one time both had lived in the same rooming house.Defendant had visited Randle in his apartment the night before the alleged burglary and stealing.At that time he had borrowed Mr. Randle's razor and had shaved with it.Mr. Randle had also furnished him food.Prior to this occasion Randle had borrowed money from defendant Smith and had put up personal property as collateral, but the debt was subsequently paid and the property returned to Randle.Defendant knew that Randle had a radio and 'Hi-Fi', since he had listened to both.In fact, he had visited Randle frequently and they had 'shot craps' together.

The State's evidence further tender to show that about 1:30 p. m. on January 13, 1962, Arnold Kratchman, one of the owners of the apartment building, who was well acquainted with defendant Smith because of some past association with him, heard a loud crash in the back stairway of the apartment building and he came up to investigate.At that time he observed defendant Smith between the first and second stairway landings of the building with a 'Hi-Fi' set in his possession and a plastic, darkcolored, table radio.Apparently the noise had been caused by the fall of the radio, since Smith was bending down picking it up when Kratchman arrived.Smith had been coming down the steps, but when Kratchman asked: 'What are you doing with this radio and Hi-Fi set?'Smith said: 'I am carrying it up to somebody' and he turned around and started back up the steps.Kratchman described the radio and the record player substantially as described by Randle.Kratchman stood at the bottom on the stairs, while defendant was on the fourth step from the top and a little above Kratchman.Kratchman observed that defendant wore glasses and he recognized defendant, especially from his profile, since defendant had a 'pronounced profile.'Kratchman did not note whether defendant was clean-shaven or had a mustache, but defendant did not have on a coat, gloves or hat.At one time defendant had worked as a maintenance man in the building for four days and then left, but later he had visited about the building and Kratchman had recently seen him.

Later the same afternoon several tenants came down and advised Mr. Kratchman that the doors to Randle's room were open.Kratchman then went up to Randle's apartment and 'saw that the two locks on the doors had been broken off, and the room was open.'He reported the matter to the police and defendant Smith was arrested on January 15, 1962.When questioned by the police, defendant denied 'any implication' in the offenses charged.No evidence was offered on bahalf of defendant.

There is no contention here that the State's evidence was not sufficient to make a case for the jury on each of the offenses charged or that the court erred in overruling defendant's motion for judgment of acquittal presented at the close of the State's case.

As stated, the only point in appellant's brief is that 'The form of verdict instruction, Number -8-, was erroneous since the state and court prevented the jury from finding defendant guilty of stealing under $50.00 without finding him guilty of burglary by deleting and omitting said instruction [sic] from the original form of verdict instruction.'The assignment is in conformity to the sixth assignment in defendant's motion for a new trial.

InstructionNo. 8(omitting the forms of verdict which are not in question) is, as follows:

'If the jury find the defendant, LAWRENCE SMITH, guilty of both Burglary, Second Degree and Stealing, you may use the following form: * * * (form set out) * * *.'

'If the jury find the defendant, LAWRENCE SMITH, guilty of Burglary, Second Degree and not guilty of Stealing, you may use the following form: * * * (form set out) * * *.'

'If the jury find the defendant, LAWRENCE SMITH, not guilty of Burglary, Second Degree, and not guilty of Stealing, you may use the following form: * * * (form set out) * * *.'

'Your one verdict, with a separate finding as to each offense charged, must be unanimous, must be signed by one of your number as foreman, and should be written upon a separate sheet of paper and not upon one of these instructions.'(Italics ours.)

On this appeal, appellant seeks to raise (by argument) an issue not raised at the trial nor mentioned and preserved in the motion for new trial, to wit: that the court erred in not instructing the jury on the issue of stealing of property of less value than $50.Appellant cites and relies upon Section 546.070 RSMo 1959, V.A.M.S. and Supreme Court Rule 26.02(6)...