State v. Stoner

• Decision Date: 08 November 1971
• Docket Number: No. 2,No. 55785,55785,2
• Citation: 473 S.W.2d 363
• Parties: STATE of Missouri, Respondent, v. Robert Joe STONER, Appellant
• Court: Missouri Supreme Court

Page 363

473 S.W.2d 363

STATE of Missouri, Respondent, v. Robert Joe STONER, Appellant.

No. 55785.

Supreme Court of Missouri, Division No. 2.

Nov. 8, 1971.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 13, 1971.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

Neale, Newman, Bradshaw & Freeman, O. J. Taylor, Joseph A. Bohrer, Springfield, for appellant.

PRITCHARD, Commissioner.

Appellant was found guilty by the verdict of a jury of possession of burglar's tools under § 560.115, RSMo 1969, V.A.M.S. As a second offender the court sentenced him to five years imprisonment in the Department of Corrections.

The principal issue is whether a 'coin box' in a public pay telephone is a 'safe' within the meaning of § 560.115. Appellant was charged with 'wilfully, unlawfully and feloniously (having) in his custody one (1) tubular lock picking device, one (1) expanding bolt, one (1) false key to upper housing of a pay telephone, one (1) ratchet, two (2) sockets, and one (1) mechanical puller, all of which aforesaid articles being then and there material, implements, instruments and mechanical devices, adapted, designed and commonly used for breaking into a safe, to wit: a metal receptacle of a pay telephone, commonly called a 'coin box', said receptacle being used for the preservation of money inserted into said telephone * * *.' Appellant says not only that the coin box is not a safe within the meaning of the statute, but that the state's evidence showed the implements he possessed were not 'adapted, designed and commonly used' to break into a coin box, as charged, but rather the pay telephone in which the coin box was contained, a fatal variance. Under his point I, he claims the state's case failed for both reasons.

On September 15, 1969, Officer Vic Rohrer was driving a patrol car in the south central area of Springfield, Missouri, at about 8:00 p.m. In response to a radio dispatch he proceeded to the 500 block of South Grant where he found telephone booths. He saw appellant inside the north booth and a woman (who was pointed out in court) standing outside it. As Rohrer and other officers arrived he observed appellant hurriedly leaving the north telephone booth, stepping out and coming directly at Rohrer who was then 10 or 15 feet away. At that time appellant stated that he had placed some money in the pay telephone and was unable to make his call or to get his money back. Rohrer looked over the scene and saw a briefcase on the ground near the two telephone booths and that there were indentations or heavy marks on the south pay telephone which appeared to have been recently made. There was an alarm system on the south pay telephone but not on the north one. The briefcase was open and Rohrer observed therein a ratchet, some sockets, a steel bar which had a large screw through one end, some vise grips, screw drivers and a small pair of pliers. These articles were marked as exhibits and received into evidence over appellant's objection that they were the subjects of an unlawful search and seizure.

After observing the above tools Rohrer arrested appellant and verbally advised him of his constitutional rights, then searched him. In appellant's left front shirt pocket he found a split bolt and nut, and in his left rear pocket he found a five-inch steel shank with a brass collar and seven set screws with little wires extending out of the brass collar. In appellant's front waistband Rohrer also found a door of the type used on the front lower housing of pay telephones. This door did not come from either of the aforementioned telephone booths, the doors of which were intact at the time. In appellant's left front trouser pocket Rohrer found a key, and in the left front shirt pocket a tear gas cartridge, a ball point pen and a brass slug. The key (Exhibit 9) was inserted by Rohrer into the upper housing of the south pay telephone and the key did fit it and did unlock the upper housing.

The following day Rohrer accompanied a Mr. Renfrow, an employee of Southwestern Bell Telephone, in tracing back serial numbers 'on the doors leading us to other phones that were broken into.'

Edwin P. McCaskill was a Security Manager for the Southwestern Bell Telephone Company, with duties to investigate telephone thefts. He was familiar with the tools used to accomplish pay telephone thefts, and was familiar with State's Exhibit 12, a pay telephone model, which was similar in security devices to those of a photograph of the south telephone at the scene of appellant's arrest. A coin deposit chute had been added which made it difficult to put a slug into the telephone, and an Ace type lock had been added. The Ace lock had a barrel which was called a tubular lock which screwed into the wall securing the upper part of the telephone so it could not be removed, so the interior could not be manipulated, and so that part of the mechanism could not be knocked out to get down to the money contained in the lower part of the telephone. Additionally, the upper housing had a standard 'Ten G' key used all over the United States, but this key did not allow access to the coin box which had its own third locking mechanism. The coin receptacle had a number on it from which it could be found where it was located. The coin receptacle itself had a seal on it which prevented thefts by the telephone company's own people when they brought the box in. The coin box also had a double-headed nail in it which was dropped through a hole securing the box. The nail could not be removed unless the upper part of the telephone was removed so that one could reach inside and pull up the nail. McCaskill had seen tools similar to those found by Officer Rohrer and which were in evidence. He described them: 'These are instruments which have been found in the possession of people who were either in the act or had recently completed the burglary or the destruction or robbery of a coin telephone by removal of the door locking the coin compartment.' McCaskill demonstrated to the jury how the instruments are used on a telephone to gain access to the coin box, and, according to the transcript, the tools and keys used were effective to accomplish removal of the coin box.

Arlin Renfrow was Unit Manager for Southwestern Bell Telephone Company and was familiar with the two telephones at the 500 block of South Grant. The south telephone at that location had a contact alarm which went off when the upper housing was removed. From his records he was able to determine where State's Exhibit 11, telephone door 3A0042 (found in appellant's possession) belonged--at 340 West Walnut, Carl's Drivein Liquor Store. He investigated the telephone at that location on September 17, and found that the door wedged in the lower housing was held there by a piece of paper. The door was removed and it was found that it was not the one which belonged there and the coin receptacle was not behind the door. The bolt on the lock was bent over out of shape. This door was numbered H44355 and belonged at Crank's Drug Store at Boonville and Commercial, where the door was numbered IF7355 and belonged at the Glower Grocery at 1600 West Division. The telephone door at the latter address was numbered IF6536 belonging at the IGA Store at 1121 East Commercial. Likewise, that door, numbered U92941, belonged at Brigance Grocery Store at 509 South National. The 509 South National door did not have a number on it. There was testimony that the manner of breaking into a telephone coin box included carrying a door to it which had been taken from a previously broken into telephone, and so on. Renfrow could not go any farther on his search after finding the unnumbered door at 509 South National.

As an offer of proof taken outside the jury's hearing and refused by the court, Arthur L. Peterson, Branch Officer Manager for Diebold Incorporated, a safe manufacturer, defined that company's products as safes (of steel, one-fourth inch and more in thickness) and testified that he did not understand State's Exhibit 12, a coin box, to be a safe.

Section 560.115 is as follows:

'Any person who makes, mends, designs or sets up, or who has in his custody or concealed about his person any tool, false key, lock pick, bit, nippers, fuse, force screw, punch, drill, jimmy, bit, or any material implement, instrument, or other mechanical device whatsoever, adapted, designed, or commonly used for breaking into any vault, safe, railroad car, boat, vessel, warehouse, store, shop, office, dwelling house, or door, shutter or window of a building of any kind, shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than two years, nor more than ten years.'

Appellant first argues that the state's evidence showed the tools in question were 'rather sophisticated devices designed solely for the purpose of obtaining access to the pay telephone itself. There was no evidence that showed, or would tend to show, that those tools were designed or adapted (or for that matter even necessary) for breaking into the coin receptacle of a pay telephone, as charged in the information.' Appellant says this evidence constitutes a fatal variance between the information and the proof within State v. Stewart, 228 Mo.App. 187, 63 S.W.2d 210, 213, and State v. Plant, 209 Mo. 307, 107 S.W. 1076. The state counters with its argument that a pay telephone has a dual function--to enable one for money to make a telephone call; and, of primary concern to the telephone company, to receive and protect money placed in the machine--and a pay telephone is a telephone and a receptacle for the preservation of money. The state's evidence showed clearly that to gain access to the coin box it was necessary to manipulate tools and devices on the locks above. These locks were there for the primary purpose of protecting the money in the coin box. The proof...