State v. Smith, 36078
| Decision Date | 11 March 1975 |
| Docket Number | No. 36078,36078 |
| Citation | 521 S.W.2d 38 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Arthur Lee SMITH, Defendant-Appellant. . Louis District, Division Four |
| Court | Missouri Court of Appeals |
Charles D. Kitchin, Public Defender, Michael C. Horn, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., K. Preston Dean, III, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Arthur Lee Smith, convicted by a jury of second degree burglary, § 560.045, RSMo 1969, V.A.M.S., and sentenced to seven years' imprisonment appeals on two grounds.
First, defendant contends that the evidence failed to prove intent to steal, which is an essential element of second degree burglary. Burglary of the dwelling house of Daisey Thomas was charged. Mrs. Thomas secured the windows and doors of her house and left home at 5:30 a.m. to go to work. About 10:30 a.m. defendant parked his automobile across the street, a few houses up from the Thomas residence. A neighbor, Mr. Williams, who was looking out of his window, saw a car stop across the street, and observed defendant get out on the driver's side, walk across the street and approach the Thomas house. Then he lost sight of the man, behind a hedge. Mr. Williams gave an in-court identification of defendant, and also identified a hat, jacket, shirt and trousers taken from defendant when arrested, as similar to those worn by the man Mr. Williams saw on the day in question. Another neighbor, Mrs. Dandridge, was attracted by the noise of the motor, which was left running. She looked out her window, saw a man 'peeping around' in the back and side yard of the Thomas property, and then saw him bend down toward a side window of the house. Her suspicions aroused, Mrs. Dandridge called the police, who arrived in about two minutes, at 10:40 a.m. The police found all of the doors of the Thomas house secured. As one of the officers turned around after checking the rear basement door and started up the steps the defendant, who was inside the basement, opened the basement door from the inside, and asked the officers if they wanted to come in. They entered the house and when they interrogated defendant he falsely claimed that he had lived there at that address for three weeks, and that the neighbors knew him. He mistakenly gave the address as 4926 Margaretta when in fact the house was numbered 4937. He also told the officers that his wife had the key. The officers arrested defendant, advised him of his rights, and upon further investigation found that a basement window on the side of the house (locked when Mrs. Thomas left for work) had been pushed in. The window was open and the storm window removed. The officers also found that a lock on an inner door leading from basement to upstairs (not broken when Mrs. Thomas left that morning) was forced open or broken. Otherwise nothing in the house was disturbed. While talking to the police defendant was nervous; his hands were shaking and he was stuttering. No burglar tools were found on defendant. Mrs. Thomas did not know defendant and has not authorized him to enter the premises.
At trial defendant accounted for his presence in the house as follows: He testified that he entered the house because he was running from one Charles Porter, whom he claimed had held a pistol on him out the window of his car; that defendant drove off and after a ten or fifteen minute run with Porter chasing him in a green Buick Electra, defendant drove into Margaretta Street, parked his car, left it running, jumped out of the car and ran as fast as he could to the Thomas house, knocked on the door, and then entered the house through a basement window which was open; that he did not remove the storm window; that he did under some clothes and never left the basement. Defendant denied the statements attributed to him by the police, and testified that he had been shot by Porter prior to that time. A police officer testified that a month later he arrested Porter for shooting defendant. The police officers testified that defendant did not mention the Porter chase when he was questioned at time of arrest. Defendant did not testify that he told the police that he was being chased. He said he made no statement to the police except to ask whether they arrested 'the fellow behind him.'
On appeal defendant contends that the State's evidence did not prove the intent to steal and in many respects supported defendant's explanation of his presence in the building. Defendant points to the subsequent arrest of Porter for shooting him as supportive of the claim that Porter was chasing him and that he was seeking a place to hide at the time in question; that no property inside the house was disturbed; no burglar tools discovered; that the...
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State v. Grant, 38718
...element of intent to steal where there is other evidence of such intent. E. g., State v. Hooper, 494 S.W.2d 306 (Mo.1970); State v. Smith, 521 S.W.2d 38 (Mo.App.1975). Appellant also argues that the trial court erred in giving Instructions No. 8 (MAI-CR 2.76) and No. 9 (MAI-CR 13.10) in rev......
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State v. Cameron, 40971.
...The fact that nothing was actually stolen or found on defendant is not important in determining a defendant's intent. State v. Smith, 521 S.W.2d 38, 41 (Mo.App.1975). Nor is it essential to the offense that anything actually be taken from the building. State v. Pauley, 515 S.W.2d 824, 826 (......
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State v. Wilson
...of an intent to enter with intent to steal, the requisite intention can be inferred from the surrounding circumstances. State v. Smith, 521 S.W.2d 38, 40 (Mo.App.1975). Defendant directed Trimble to drive to the building and tried once to get into the building unsuccessfully. After finally ......
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State v. Riley, 36716
...was apocryphal, his attempt to deceive the police is a further circumstance of guilt which the jury could consider. See State v. Smith, 521 S.W.2d 38 (Mo.App.1975). In any event, the jury was not bound by the defendant's explanation of the circumstances which he made at trial and could disb......