State v. Tierney
| Decision Date | 14 October 1963 |
| Docket Number | No. 1,No. 49454,49454,1 |
| Citation | 371 S.W.2d 321 |
| Parties | STATE of Missouri, Respondent, v. Phillip Martin TIERNEY, Appellant |
| Court | Missouri Supreme Court |
Abe J. Garland, St. Louis, for appellant.
Thomas F. Eagleton, Atty. Gen., Jefferson City, Allen J. Roth, Sp. Asst. Atty. Gen., St. Louis, for respondent.
WELBORN, Commissioner.
Phillip Martin Tierney appeals from a judgment of conviction entered upon a jury's verdict finding him guilty of burglary in the second degree. Section 560.070, RSMo 1959, V.A.M.S. He was charged under the habitual criminal act. The trial court found that he had been previously convicted of two felonies and assessed his punishment at five years in the custody of the Department of Corrections.
No brief has been filed on behalf of the appellant in this court. We will, therefore, consider the assignments of error in his motion for new trial. The motion contains eight assignments of error. The first five are as follows:
None of these assignments is sufficient to preserve anything for review by this court. Rule 27.20, V.A.M.R.; State v. Washington, Mo.Sup., 364 S.W.2d 572; State v. Jonas Mo.Sup., 260 S.W.2d 3; State v. Hadley, Mo.Sup., 364 S.W.2d 514.
The sixth and seventh assignments relate to the sufficiency of the evidence to sustain the conviction. Assignment 6 charges that the evidence fails to support the charge that the appellant 'forcibly did break and enter the premises numbered 5915 Easton Avenue, St. Louis, Missouri.' Assignment 7 charges that the evidence shows that the appellant could not have entered and did not enter the premises in question. Therefore, we will consider the evidence offered by the State. (No evidence was presented by the defendant.)
Harry Friedman owned a pawnshop at 5915 Easton Avenue in the City of St. Louis. His business was conducted under the trade name, 'Cross-Town Loan Company.' The entrance to the place of business was recessed from the sidewalk and from the front of the building. Along either side of the entry-way was a plate glass window. When Friedman closed his place of business on the evening of August 11, 1961, various items of merchandise, including rings, musical instruments, radios and medals, were displayed behind the plate glass windows in the entry-way.
At approximately 3:25 A.M., on the morning of August 12, 1961, Officer Leo Seithel of the St. Louis Metropolitan Police Department was walking his beat in the 5900 block of Easton Avenue. When he was in the vicinity of No. 5910 Easton Avenue, he observed an old model automobile proceeding slowly eastward on Easton Avenue. The driver of the vehicle made a left turn at Hamilton Avenue and parked the vehicle a short distance north of Easton. Two men got out of the car. One, whom the officer later identified as the appellant, was carrying a garbage can. The appellant walked across Hamilton to the north side of Easton and proceeded to the Cross-Town Loan Company. Upon reaching the location of the Cross-Town Loan Company, he placed the can down about two feet from the entrance, came to the front of the store and looked up and down Easton Avenue. Officer Seithel stepped behind a lamp post and observed the appellant. Appellant then stepped inside the entrance-way two or three feet and threw the garbage can through the plate glass window along the west side of the entrance-way, shattering the window. Officer Seithel, who had continued to observe appellant's actions, started to cross the street and stepped from the curb just as the garbage can was thrown through the window. He testified that the appellant reached through the borken window and 'grabbed' the articles in the window. When near the center of Easton Avenue, which the officer described as forty to fifty feet wide, Officer Seithel drew his gun and ordered the appellant to raise his hands. Appellant did so and the officer placed him under arrest.
Upon being questioned at the scene, the appellant stated that he would not have done what he did had he not been drinking. Both Officer Seithel and Officer Mastrantuono who reached the scene shortly thereafter and examined the appellant stated that, although appellant appeared to have been drinking, he was not intoxicated.
The evidence presented is sufficient to establish the requisite elements of breaking and entering in the crime of burglary in the second degree. The testimony of the officer who witnessed the appellant's actions at the scene clearly showed the breaking. He further testified that the appellant reached through the broken window and grabbed articles on display there. The scene was illuminated by an electric street light, which, according to the officer, permitted him to observe the appellant's actions and to see him put his hands inside the broken window and start grabbing the objects there.
We have in recent cases pointed out that, to establish the element of entering in burglary, any entry, however slight, by any part of the body is sufficient. State v. Pigques,...
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State v. Asberry
...of burglary. State v. Maddox, 465 S.W.2d 607, 609(1) (Mo.1971); State v. Watson, 383 S.W.2d 753, 756(4) (Mo.1964); State v. Tierney, 371 S.W.2d 321, 323(3) (Mo.1963). Although there was no evidence of the size of the basement window opening or proof to indicate that the opening minus the sc......
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State v. Ross
...to support defendant's conviction and the instruction on concert of action. State v. Phillips, 452 S.W.2d 187 (Mo.1970); State v. Tierney, 371 S.W.2d 321 (Mo.1963). Appellant contends, Points I and II, that the court erred in overruling defendant's motion to suppress evidence consisting of ......
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State v. Jones
..."whole body" into a structure to commit a burglary because "[t]he least entry of any part of the body is sufficient"); State v. Tierney, 371 S.W.2d 321, 323 (Mo. 1963). Several cases have analyzed remarkably similar factual scenarios to Jones' in which the defendant completed his unlawful e......
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State v. Schleicher, 54439
...to joint activity, appellant's contention that no instruction on that subject should have been given is without merit. State v. Tierney, Mo.Supp., 371 S.W.2d 321, 324(6); State v. Price, Mo.Sup., 362 S.W.2d 608, Judgment affirmed. PER CURIAM. The foregoing opinion by WELBORN, C., is adopted......