State v. Stuver, 48956

• Decision Date: 10 September 1962
• Docket Number: No. 2,No. 48956,48956,2
• Citation: 360 S.W.2d 89
• Parties: STATE of Missouri, Respondent, v. Harry Lee STUVER, Appellant
• Court: Missouri Supreme Court

Page 89

360 S.W.2d 89

STATE of Missouri, Respondent, v. Harry Lee STUVER, Appellant.

No. 48956.

Supreme Court of Missouri, Division No. 2.

Sept. 10, 1962.

Thurman, Nixon & Blackwell, Hillsboro, for appellant.

Thomas F. Eagleton, Atty. Gen., Scott O. Wright, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

LEEDY, Judge.

Appeal by Harry Lee Stuver from a judgment of the Jefferson Circuit Court convicting him of the felony of burglary in the second degree and imposing as punishment a sentence of five years' confinement in the custody of the Department of Corrections. The case is before us on a full transcript and the state's brief, but without a brief on the part of the complaining party, who will be hereinafter referred to as defendant. We look, then, to the motion for new trial for his assignments of error, and examine such of them as may preserve anything for review, and are necessary to the proper disposition of this appeal.

The building charged to have been burglarized is located on U. S. Highways 61 and 67 in Jefferson County just north of Imperial, and known as Welcome Inn Bowling Lanes. It was owned by Al Redinger, and the equipment therein used in the operation of the bowling alley was owned by his son-in-law and daughter, Jim and Marie Herrell. The structure is 165 feet long and 52 feet wide, contains eight lanes, each 85 or 90 feet in length, and has several rooms--among others, a kitchen and a furnace room. At the time in question the structure and equipment were leased to Joe Cunningham. Soda, candy, cigarettes and similar items of merchandise were kept on hand and sold as a part of the business. Oliver Blaha, the manager, lived in a trailer some 50 feet south of the building, and the Herrells lived next door to the bowling alley, but on the opposite or north side.

In the early morning hours of April 20, 1961, Blaha closed the bowling alley, and in the presence of Mr. and Mrs. Herrell fastened all the doors and windows and then went to his trailer. In a short while the burglar alarm 'went off' or sounded in the trailer, indicating an intrusion into the bowling alley. Blaha called the sheriff's office, and two deputies, Henry Graf and Robert Edney, were sent to the scene. They arrived in eight or ten minutes. Blaha summoned the Herrells by telephone, and these five persons (Blaha, Graf, Edney, and Mr. and Mrs. Herrell) proceeded to the bowling alley. Entering by way of the furnace room, they turned on all the lights. At first, no intruder was discovered. A search was instituted throughout the entire building, and when it was seen that the juke box and pinball machines had been broken open, the officers 'called three times to anyone in the building to give themselves up.' No response was received, but when the search progressed to the point where some member or members of the group reached the automatic pinsetting machines, two men (Lawrence Noel Manley and Carl Stiebing) came out of the darkness behind those machines, and, with their hands up, surrendered. Neither of these men proved to be the defendant in this case, although Manley was admittedly his 'blood brother.' (The difference in their surnames arises from the fact defendant had been adopted by a family in another state.) Manley and Stiebing were taken forthwith to Hillsboro, the county seat, and lodged in jail. Blaha, after again locking up the bowling alley, returned to his trailer, and shortly thereafter (about 4:30 a. m.) the burglar alarm sounded, but this time it indicated only that the kitchen door had been opened, and left so. Blaha did not report the fact of the second alarm to the authorities until 8 or 9 o'clock that morning, but he did return to the bowling alley and searched around the area to see if he 'could find anybody that come out of that door.' The kitchen door had been opened from the inside, but he neither saw or heard anyone, nor did he hear any car start. To the best of his knowledge, nothing was taken from the bowling alley, although the pinball machines and juke box had been 'jimmied'. Entry had been effected by forcing the kitchen window.

Defendant was apprehended the next day, and upon interrogation by the authorities admitted his participation in the burglary. He stated that he, too, was behind the automatic pinsetters at the time his two companions surrendered, and, in fact, at that time had his gun pointed at the officer. He further stated he was glad the latter did not shine his flashlight on him because if he had, he (defendant) was so scared he would have shot the officer. He also told the officers where he had 'stashed' the gun, and, upon investigation by the officers, it (and another one) was found at the place indicated by defendant.

The defendant was the only witness called in his behalf. He denied his guilt, and testified to the circumstances under which he and his wife and eight-months-old baby, together with Manley and Stiebing, had come to Jefferson County from Wisconsin a day or so before he was arrested at Hillsboro. He further testified he had confessed because of threats made by the officers that they would lock up his wife and child unless he did so.

The foregoing facts effectively refute the ground of defendant's motion for a new trial that the evidence was insufficient to make a submissible case. Their mere statement demonstrates beyond peradventure that the jury could reasonable have found the essential elements of the offense of burglary in the second degree, as defined by Sec. 560.070, RSMo 1959 and V.A.M.S. State v. Lindner, Mo., 282 S.W.2d 547, 549; State v. Parks, Mo., 336 S.W.2d 369, 370[2, 3]; State v. Grant, Mo., 275 S.E.2d 332, 333-334; State v. Miller, Mo., 202 S.W.2d 887, 889[1, 2].

State's instruction S-2-P-1 submitted the hypothesis of ownership in Joe Cunningham as to both the building and any goods, wares and merchandise then and there kept and deposited. The motion assigns this as error because there was allegedly, no evidence in the record showing Joe Cunningham to be such owner. The information averred the building to be 'the property of Joe Cunningham,' and the only evidence on that subject was that introduced by the state. It was directly to the effect that Cunningham's occupancy was as a tenant under a lease from the owner, Al Redinger. This was sufficient to sustain the allegation of ownership of the building in Cunningham. See State v. Carey, 318 Mo. 813, 819, 1 S.W.2d 143, 146, where, in reaffirming State v. Harrison, Mo., 285 S.W. 83, 87, and quoting approvingly from State v. McGuire, 193 Mo. 215, 226, 91 S.W. 939, 942, it was said, '[P]roof of ownership of...