State v. Taylor
| Decision Date | 13 June 1960 |
| Docket Number | No. 1,No. 47764,47764,1 |
| Citation | 336 S.W.2d 495 |
| Parties | STATE of Missouri, Respondent, v. Lee TAYLOR, Appellant |
| Court | Missouri Supreme Court |
Ronald J. Fuller, Rolla, for appellant.
John M. Dalton, Atty. Gen., William C. Blair, Sp. Asst. Atty. Gen., for respondent.
Ernie Campbell and Lee Taylor were jointly charged by an information with burglary in the second degree and larceny. The offenses were alleged to have been committed in Phelps County, Missouri, on the first day of August, 1957. The information further alleged that each defendant had previously been convicted of a felony and had been discharged after serving a sentence of imprisonment. A severance was granted and on a change of venue, the case was transferred to Maries County, Missouri. Lee Taylor was there tried and convicted by a jury of burglary and larceny in connection with the burglary. The jury, by verdict, assessed Taylor's punishment at two years' imprisonment in the penitentiary for the larceny but did not assess any punishment for the burglary. On appeal to this court, the case was remanded to the Circuit Court with directions to that court 'to cause defendant to be brought before it, and proceed to assess the punishment on the burglary charge, and enter a new judgment sentencing defendant on both charges.' See State v. Taylor, Mo.Sup., 324 S.W.2d 725. The trial court in compliance with the mandate fixed Taylor's punishment for the burglary at two years' imprisonment. The court thereupon sentenced Taylor separately on each charge at two years' imprisonment in the penitentiary and issued a commitment that he be delivered to the Department of Corrections to be dealt with according to law. From that judgment, an appeal was taken to this court.
The defendant has not favored us with a brief. The State refiled the brief which had been prepared and filed on the original appeal.
We shall consider such assignments in defendant's motion for new trial which present questions for our review and which were not disposed of on the first appeal.
The defendant did not question the sufficiency of the evidence to sustain the verdict of guilty. We, therefore, need not make a detailed statement of the evidence. The State's evidence tended to prove the following: Mrs. Thelma Loughrige testified that she lived about twelve miles west and four miles north of Rolla in Phelps County, Missouri; that on the morning of August 1, 1957, she left home and went to Newburg where she was employed at the Rawlings Manufacturing Company; that before she left she had locked the doors of her home and the windows were closed. On the afternoon of that day, the company superintendent informed her that word had been received that someone was burglarizing her home. She immediately went to her home and found that a basement window had been removed. Meat valued at about $75 had been taken from a freezer and a pistol valued at $10 and $7 in cash were missing from the home. This witness also testified that fuzz from a gunny sack was found in a wash tub which had been standing in the basement by the window that had been removed.
The evidence was that on the day of the burglary two boys living in the neighborhood noticed a car stop in front of the Loughrige home and saw a man walk around the rear of the house. This occurred before noon. In the afternoon, these boys saw a car stop near the home and two men went to the house carrying gunny sacks. These boys took bicycles and rode by the car and noted the license number. Later, the boys saw the two men driving by where the boys were working. Mrs. Loughrige was notified. Police officers, the sheriff, and the Highway Patrol were also notified. Campbell and Taylor were later arrested in Rolla. The two boys identified both Campbell and Taylor as the men they had seen at the Loughrige home.
When the arrest was made, a gunny sack was found in the same car which the State's witnesses had seen at the Loughrige home. The car belonged to Campbell. The defense was an alibi. However, neither Taylor nor Campbell testified during the trial of this case.
In the motion for new trial, defendant questioned the sufficiency of the information. He said it did not charge larceny. We find that the information charged the larceny to have been committed in connection with the burglary. The information did not allege that the property was taken without the consent of the owner. This question was considered in the case of State v. Zammar, Mo.Sup., 305 S.W.2d 441, loc. cit. 445, 446(6-8). This court there said, 'A taking without right or leave and with an intent to keep, wrongfully, is obviously a taking without the consent of the owner, so that an attack on the sufficiency of the indictment for failure to use the precise words of the statute in this regard (and raised for the first time after verdict) should be, and it is disallowed.' We rule the information to be sufficient.
Defendant complained of instruction No. 2 which informed the jury that in case it found defendant Taylor had not been previously convicted and found him guilty of burglary and larceny in connection with burglary, a punishment could be assessed for the burglary at 2 to 10 years and for the larceny at 2 to 5 years' imprisonment, Complaint is made that the punishment for larceny, as fixed by Section 560.161 (Laws of 1957, p. 376) permitted a punishment at less than 2 years. This contention is without merit. Taylor was convicted of both burglary and larceny. The punishment prescribed for such a larceny is 2 to 5 years. See Sec. 560.110, V.A.M.S., 1959 Pocket Part, pp. 9, 10. We call attention to subsection 2 of Sec. 560.110 which provides that the trial court, in such a case, The instruction was proper and in accordance with Sec. 560.110, supra.
In this same assignment, defendant complained that the jury was not permitted to acquit him of burglary and convict him only of larceny or vice versa. We find this complaint to be without merit. Instruction 2 authorized an acquittal of both offenses, a conviction of both, or an acquittal of one and a conviction of the other. This instruction was a sufficient guide to the jury to find for the defendant or against him on either or both charges.
Defendant complained in his motion for new trial that the court erred in admitting in evidence State's Exhibit No. 1 which was a photograph of the defendant taken in the Missouri State Penitentiary on June 23, 1954. The exhibit was offered for the purpose of identification to prove that Taylor had served a sentence. Defendant said that he had been previously identified and therefore the exhibit was immaterial and only tended to prejudice the jury against him. The jury by its verdict found that defendant had not been previously convicted. The admission of the exhibit obviously did not prejudice him.
The State seems to have had some difficulty in getting two witnesses to...
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