State v. Smith
| Decision Date | 14 May 1962 |
| Docket Number | No. 2,No. 48947,48947,2 |
| Citation | 357 S.W.2d 120 |
| Court | Missouri Supreme Court |
| Parties | STATE of Missouri, Respondent, v. Robert C. SMITH, Appellant |
Stanford M. Katz, Kansas City, for appellant.
Thomas F. Eagleton, Atty. Gen., Edward A. Glenn, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
STOCKARD, Commissioner.
Robert C. Smith has appealed from the judgment, after jury verdict, whereby he was sentenced to confinement in the penitentiary for a term of three years for burglary in the second degree. Appellant has filed no brief so we consider the assignments of error properly made in his motion for new trial.
Appellant challenges generally the sufficiency of the evidence to sustain the verdict, and he also contends that there was 'no evidence presented of any breaking or entering.'
Mr. and Mrs. Flavil B. George had an 'L' shaped building, referred to as a barn, constructed of concrete blocks in which they had stored 'various articles of antiques.' Apparently the building was divided into several rooms, and one room was used 'for storing lumber' and in another room there were 'things stored.' The building had five doors, all of which were locked except the east door which was open to permit a horse to enter. All the windows were locked except one from which the glass had been broken, and it was barricaded with used lumber. The record does not disclose in what room or part of the building this barricaded window was located. On December 16, 1960, when none of the George family was at home, a neighbor saw a 'blue-green' automobile with fins on the rear fenders drive into the driveway. The operator went first to the front and then the rear door of the George residence, and when no answer was received he entered his automobile and drove away. A few minutes later the neighbor saw the same man walk behind the barn. She could see the east door of the barn, which was open, and no one entered through it. The police were called and when they arrived appellant came out of the east door of the barn and stood behind the door. When the police backed their automobile into the driveway of the George residence, appellant left his position behind the door and started petting a horse which had walked in from the pasture. He told the police officer that he was looking for rabbit tracks because he wanted to set some traps, and that he liked horses. His 'blue-green' Cadillac, which had fins on the rear fenders, was parked about 400 to 500 yards away, but to get to it by the street it was necessary to travel three or four blocks.
Upon investigation of the premises it was found that the boards barricading the one window had been pushed or moved aside so that there was room for a person to enter the barn. All the doors, except the east door were still locked. The 'things' and 'papers' stored in the 'west room' were 'in confusion' and had been pulled off the shelves onto the floor, but apparently nothing had been taken.
The offense of which appellant was charged was the 'breaking and entering' of a building in which there were 'goods, wares, merchandise or ther valuable thing kept or deposited, with intent to steal or commit any crime therein.' Section 560.070 RSMo 1959, V.A.M.S. It is obvious that appellant entered the building. He was seen to come out of it. It is also obvious that he did not enter through the only door that was open, and that there were no windows or other doors which were not locked or barricaded. No one saw appellant enter the building, but the offense of burglary in the second degree may be established by circumstantial evidence, State v. Williams, 356 Mo. 1048, 204 S.W.2d 748, and the circumstances revealed by the evidence, as previously set out, clearly authorize a finding by the jury that appellant entered the building by pushing aside the boards barricading the window. This constituted sufficient evidence of a breaking and entry. See State v. O'Brien, Mo., 249 S.W.2d 433. In addition, lumber and antiques clearly constituted 'goods, wares, merchandise or other valuable thing' within the meaning of Section 560.070. The element of intent to steal, like the proof of any other intent, is usually not susceptible of direct proof, but it may be established by circumstantial evidence. State v. Shipman, 354 Mo. 265, 189 S.W.2d 273. In order to establish the requisite intent in the offense of second degree burglary it is not necessary that the act of stealing be completed after the breaking and entry. State v. Pigques, Mo., 310 S.W.2d 942; State v. Whitaker, Mo., 275 S.W.2d 316, 319. The circumstances of appellant's conduct in first determining if anyone was at the George home, his method of entry into the building, and the disturbance of the 'papers' and 'things' in the 'west room' unquestionably authorize a finding by the jury of the requisite intent.
It has frequently been stated that when the evidence of an accused's participation in a burglary, or any other crime, is circumstantial, the facts and circumstances relied upon by the state to establish guilt must not only be consistent with each other, and with the hypothesis of the accused's guilt, but they must also be inconsistent and irreconcilable with his innocence, and must point so clearly and satisfactorily to guilt as to exclude every reasonable hypothesis of innocence. State v. Whitaker, supra; State v. Brown, Mo., 291 S.W.2d 615. The circumstances previously related are inconsistent with appellant's innocence, and they are inconsistent with every reasonable hypothesis except that of guilt of the offense charged. We necessarily conclude that the facts and circumstances shown by the evidence, if believed by the jury, are sufficient as a matter of law to induce a belief of appellant's guilt on the part of the jury beyond a reasonable doubt.
Appellant asserts that the trial court erred in admitting into evidence State's Exhibit No. 1, and in permitting the exhibit to be taken by the jury into the jury room. This exhibit consisted of a sketch or diagram of the premises owned by Mr. and Mrs. George showing the outline of the 'L' shaped building and the location of the various doors and windows. It was not drawn to scale. The exhibit was drawn by Mrs. George and used by her in clarifying her testimony.
Apparently the only objection of appellant to the exhibit is that it was not drawn to scale. However, for its purpose, the precise scale was not important. Such a sketch must not be so inaccurate or...
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