State v. Turner
| Decision Date | 08 November 1954 |
| Docket Number | No. 1,No. 44177,44177,1 |
| Parties | STATE of Missouri, Respondent, v. James Ackey TURNER, Appellant |
| Court | Missouri Supreme Court |
James D. Anderson, Kansas City, for appellant.
John M. Dalton, Atty. Gen., W. Don Kennedy, Asst. Atty. Gen., for respondent.
Defendant, James Ackey Turner, Hardy Dell Green and Orville Lee Estes were jointly charged on information of the Prosecuting Attorney of Jackson County with the crimes of burglary in the second degree and grand larceny. Green and Estes pleaded guilty to the charge of burglary and each was sentenced to imprisonment for a term of two years. Upon trial by jury defendant was found guilty of the burglary charged against him and his punishment was fixed at imprisonment in the Penitentiary for a term of two years. Following the overruling of his motion for new trial and timely filed amended and supplemental motion for new trial, the trial court commuted the punishment imposed by the verdict to imprisonment in the Intermediate Reformatory at Algoa for a term of two years. Defendant was so sentenced, from which sentence he has duly appealed.
Defendant has filed no brief. We, therefore, examine the record and valid assignments of error set forth in the motions for new trial. Rules 28.02, 42 V.A.M.S. and 27.20, 42 V.A.M.S.
The information sufficiently alleges the crime of burglary in the second degree, as defined in Sec. 560.045 RSMo 1949, V.A.M.S.; State v. O'Brien, Mo.Sup., 249 S.W.2d 433. The record is silent as to arraignment. However, inasmuch as it shows defendant was tried as if he had been arraigned and had entered a plea of not guilty, failure of formal arraignment does not constitute reversible error. Rule 25.04, 42 V.A.M.S. The jury was duly empanelled and sworn, the defendant was present throughout the trial and at rendition of judgment, the trial proceeded in order, the jury was instructed, the cause was argued and submitted to the jury, and its verdict is in proper form and within the range of punishment prescribed for the offense for which he was convicted. Sec. 560.095 RSMo 1949, V.A.M.S. Apparently defendant's sentence to imprisonment in the Intermediate Reformatory instead of the State Penitentiary as specified in the verdict was in accord with Sec. 217.740 RSMo 1949, V.A.M.S. No complaint is made of it. Allocution was granted in accord with Sec. 546.570. The judgment and sentence is in accord with the verdict as modified by the commutation.
On November 3, 1952, Leonard Stewart and Bertha Stewart, husband and wife, resided in their jointly owned home on Route 1, Courtney and Atherton Road, five or six miles from the city of Independence, in Jackson County, Missouri. Their daughter and her husband, Vola and Foster A. Guffey, resided some 300 or 400 feet east of them. On the morning of said date, Mrs. Stewart left the Stewart home to go to work. The windows and doors of her home were closed. At about 2 o'clock, p. m., she received a call from her daughter advising her that the home had been 'broken into', and she immediately returned there. Upon her return, she found one of the back windows partially open. Upon entering the house, in company with her daughter and son-in-law, she found a vanity dresser in the bedroom opened, her purse, which had been therein, was opened and a $20 bill was missing from it. The contents of a jewel box had been spilled and a small amount of jewelry, of the value of $3 of $4, was gone.
Foster A. Guffey testified: On said afternoon he was in the back yard of his home east of the Stewart home and saw some men drive into the driveway in front of the Stewart home, saw two men come to the rear of that home and enter the back porch. He called to his wife to bring him a shotgun and directed her to drive their car to the front of the Stewart home. He walked to the rear of the home, keeping the house 'pretty much under surveillance', saw no one at the rear of the premises, went to the front and came upon Green, who told him 'they were looking for their aunt'. Witness directed his wife, who had driven to the front of the Stewart home, to call the sheriff. Estes came to the front of the house and witness 'backed them (Estes and Green) up.' He then saw a third man 'going up over the hill' to the rear of the Stewart home. One of the two men (Estes) then 'made a break around the other side of the house' and ran away.
Orville Lee Estes testified in behalf of the State: On the afternoon of November 3, 1952, he and Hardy Dell Green and defendant rode toward Independence in Green's car. Witness and Green decided to break into a house for the purpose of taking 'something from the house'. Defendant 'didn't want to go at all because he was on parole.' All three rode into the driveway of the Stewart home. Green stayed at the car. Witness and defendant went to the rear of the house and defendant stood on the porch.
At this point, witness testified that defendant did not go into the house. Thereupon, the prosecuting attorney, claiming surprise, produced a statement which witness admitted signing, and the following ensued:
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'The Court: I think it is a surprise.'
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'
Witness further testified that he received a sentence of two years imprisonment for his participation in 'this crime', whereupon defendant's counsel stated: The objection was overruled. Witness testified without objection that he had applied for a parole, which had been denied.
Hardy Dell Green testified that he, Estes and defendant entered the driveway of the Stewart home in witness' car. He remained in front of the house and Estes and defendant went to the rear.
On the same afternoon, two men living in the vicinity of the Stewart home, after receiving information of the burglary, saw defendant 'sneaking up a fence row', came up to him and questioned him. He denied any knowledge of the matter, but asked why they 'didn't give him a break' and what they 'would take to let him run.' He did run and was later captured in the same general vicinity by one of these men and thereafter taken into custody by a deputy sheriff.
The defendant did not testify.
Defendant's amended motion for a new trial assigns error of the trial court in 'not giving a directed verdict in this cause after witnesses for the State had testified that defendant had no part in the alleged conspiracy, and did not participate nor enter the place alleged to have been entered.' (Estes only had so testified.)
Of course, the portion of the written statement made and signed by Estes to the effect that defendant had entered the Stewart home with him, the content of which, in substance, was brought out before the jury, constitutes no substantive evidence that defendant did in fact enter said home. State v. Davenport, 342 Mo. 996, 119 S.W.2d 291; Hammond v. Schuermann Building & Realty Co., 352 Mo. 418, 177 S.W.2d 618, 622. There is then left for consideration the questions whether the oral testimony of Estes is (a) binding upon the State and (b) whether the evidence in the case as a whole shows a total lack of participation by any overt act on the part of defendant so as to make him a principal in the case. Addressing our attention to the last question first, we think that Estes' testimony on this phase of the case could and should be construed as meaning that defendant was merely reluctant to participate in the burglary because of his parole, but that in fact he did participate when he, in company with Estes and Green and with knowledge of their purpose, trespassed upon the Stewart property by entering the back porch and standing there during some of the time that Estes was committing the burglary. But, assuming for the purpose of this opinion that Estes' testimony shows a total lack of participation by defendant, yet the State is not bound by it if there is other evidence in the case from which it may be reasonably inferred that defendant was a participant. State v. Jones, 363 Mo. 998, 255 S.W.2d 801, 804-805[4, 5].
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