State v. Wall
| Decision Date | 30 June 1936 |
| Citation | 96 S.W.2d 36,339 Mo. 111 |
| Parties | The State v. Walter Wall, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Circuit Court; Hon. Frank Kelly Judge.
Affirmed.
E L. McClintock for appellant.
(1) The court erred in refusing to instruct the jury at the close of the State's case and again at the close of all the evidence, that under the law and evidence they should find defendant not guilty. State v. Freyer, 48 S.W.2d 899; 16 C. J., p. 763, sec. 1566, pp. 551, 552, sec. 1063; State v. Hogan, 252 S.W. 389; State v West, 49 S.W.2d 275; State v. Carter, 36 S.W.2d 919; State v. Miller, 264 Mo. 451; 16 C. J. 763, sec. 1568; State v. Tracy, 284 Mo. 619. (2) The court erred in instructing the jury on the question of larceny, as there was no evidence to connect defendant with larceny and no proper instruction given as to how, if at all, defendant could be guilty of larceny.
Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.
(1) The court did not err in its ruling as to the examination of the jury on voir dire. State v. Tally, 22 S.W.2d 788. (2) The appellant has waived his right to contend that the court erred in overruling the demurrer at the close of the State's case. State v. Barr, 78 S.W.2d 104; State v. Vigus, 66 S.W.2d 854. (3) The court did not err in overruling the appellant's demurrer at the close of the entire case. State v. Bishop, 296 S.W. 149; State v. Woodard, 273 S.W. 1050; State v. Carey, 278 S.W. 719; State v. Garrish, 29 S.W.2d 71; State v. Gentry, 44 S.W.2d 27; State v. Hohensee, 62 S.W.2d 436; State v. McVey, 66 S.W.2d 857. (4) The court did not err in giving instructions 1 and 2 on the part of the State. State v. Butterfield, 75 Mo. 301; State v. Tucker, 62 S.W.2d 456.
Westhues, C. Cooley and Bohling, CC., concur.
Appellant was convicted of burglary and larceny in the Circuit Court of Cape Girardeau County, Missouri, and sentenced to two years' imprisonment in the penitentiary for each offense. Being unsuccessful in obtaining a new trial he appealed.
Appellant and one Babe Looney were jointly charged with the crime. Looney entered a plea of guilty and was sentenced to serve a term in the penitentiary. Appellant entered a plea of not guilty. At the trial Looney testified for appellant.
The facts, as disclosed by the evidence, were as follows: On Sunday night, May 12, 1935, at about twelve o'clock, Looney entered a restaurant by breaking the glass of the back door thereof with a rock. Looney so testified and also admitted that he took $ 62.50 in cash and placed it in his pockets. About that time he was arrested by a police officer. The police officer testified that he heard a crash of glass and ran to an alley in the direction of where he thought the crash had occurred; that as he entered the alley he heard someone running; that by the use of a flashlight he saw appellant running into the alley from the rear of the restaurant. At the command of the officer appellant halted. The officer testified the following conversation occurred:
The police officer further testified:
The officer, by means of his flashlight, discovered Babe Looney in the restaurant in the back of the bar. Looney and appellant had known each other for some time. Looney had worked at the restaurant on the Saturday previous for a period of a few hours and had learned the location of the cash. They testified that their only purpose of going into the alley was to take a drink of whiskey from a bottle in Looney's possession; that they met by chance just before entering the alley. Looney testified that he had not mentioned to appellant that he intended to burglarize the restaurant. In fact he stated that the idea first came to his mind at the time he was taking a drink in the alley; that after taking a drink he left appellant and proceeded to break the glass; that appellant walked toward the street and did not know of Looney's intentions. Appellant denied having taken any part in the crime and testified that after he had taken a drink he handed the bottle to Looney and told him he was going home; that shortly thereafter he heard the crash; that he then saw the officer coming and waited for him. Appellant's version of the conversation had with the police officer was as follows:
The restaurant was located in the second storeroom from the alley. The police officer testified that appellant came from behind the buildings and was running away from the direction of the restaurant. When appellant was discovered he was only about sixty feet from the broken door.
Appellant in a number of assignments of error presented the question of the sufficiency of the evidence to sustain the verdict of guilty. In a criminal case a jury must be convinced of the defendant's guilt beyond a reasonable doubt before it is authorized to convict. The jury was so instructed in this case. A mere possibility of a defendant's innocence will not justify an acquittal. It is our opinion that under the evidence there may have been a possibility of appellant's innocence but it was a mere possibility based upon conjecture and highly improbable. All the evidence introduced by the State pointed to the guilt of appellant and was inconsistent with any reasonable theory of his innocence. Even the evidence of appellant and Looney, when properly analyzed, was more consistent with the guilt of appellant than with his innocence. Looney had obtained knowledge of the location of the cash a day before the crime was committed. Both Looney and appellant, so the evidence disclosed, were in need. That the two met by accident, about midnight, on the street near the restaurant, if true, was certainly a coincidence. Then strange to say they walked down the alley to take a drink within a few feet of the place burglarized. Looney testified that up to this time he had not thought of committing the crime; that the idea came to him suddenly, and leaving appellant he went to the restaurant and broke the glass door with a rock. The evidence of the officer, that he saw appellant running away from, and not toward the location of the broken door is inconsistent with appellant's evidence that he waited for the officer and was not running. Appellant's statements made hurriedly in response to the questions of the officer showed he had knowledge of what had occurred. If appellant and Looney had separated for the night, what gave appellant the idea that it was Looney who had fallen through a glass, and why should appellant run away from the scene? Was it perhaps because he heard the footsteps of the officer rapidly approaching? Again, why did appellant inform the officer that Looney had run down the alley after falling through the glass? This showed a deliberate intent to deceive the officer. It also showed that appellant knew what had transpired. The jury probably concluded, and we think...
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