State v. Webb
| Citation | 423 S.W.2d 795 |
| Decision Date | 12 February 1968 |
| Docket Number | No. 52964,No. 2,52964,2 |
| Parties | STATE of Missouri, Respondent, v. Leo Robert WEBB, Jr., Appellant |
| Court | United States State Supreme Court of Missouri |
Norman H. Anderson, Atty. Gen., Jefferson City, Richard E. Watson, Sp. Asst. Atty. Gen., North Kansas City, for respondent.
Robert G. Duncan, Austin F. Shute, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
Defendant was charged by amended information with stealing copper tubing or pipe of the value of $236; it was also alleged that he had previously been convicted of a felony, imprisoned therefor, and subsequently discharged. He was found guilty by a jury and, upon findings by the Court of the prior proceedings, he was sentenced to a term of seven year. Defendant was represented at the trial and is represented on this appeal by privately employed counsel. A motion for new trial was timely filed; we need not digest that, for it sufficiently raised the points now briefed on this appeal. One contention is that the evidence was not sufficient to show defendant's participation in the crime, so we shall relate the evidence in some detail.
The Kansas City police received a call as 10:40 p.m. on April 26, 1966, to check for prowlers at the 'rear' of 1601 East 8th Street. Two cars responded. One officer Wilbur Wright, got out and went south between two apartment buildings, towards 9th Street, while the other, Charles McKinnie, drove to a parking lot just east of 1609 East 8th, got out and walked west. Both thus approached a fenced storage lot of the Foley Heating & Plumbing Company, the address of which was 1516 East 9th Street. Officer McKinnie, walking 'around the west side' of a four-car garage at the rear of the parking lot, saw two boys or men running in the fenced area; one went over the south fence, and one over the east fence; he started to chase the latter and thus went behind the garage where he immediately saw the defendant, Leo Webb, and his brother Jerry Lee Webb. The defendant was sitting on a long piece of two-inch copper tubing holding it with his right hand, and facing south; the brother was kneeling, facing north, with a hacksaw in his hand trying to saw the pipe. When the officer thus came upon the two, defendant stood up and both were arrested. At that time defendant said that all he was doing was sitting there watching some boys 'steal copper.' The hacksaw was marked by the officer and it was later received in evidence as an exhibit.
Officer Wright, when he had walked between the buildings and reached the fence, saw three persons inside the storage lot taking pipes from the rack at the rear of the Foley building. These were subsequently apprehended, just how is not shown. Two were juveniles, one of these being another brother of the defendant. There was no objection to the evidence identifying these persons. The garage mentioned was at the northeast corner of the Foley storage lot; this officer saw the defendant brought out from the south side of that garage by Officer McKinnie. Neither officer saw the defendant inside the lot. The fence was a chain link fence, about 6 feet high, with barbed wire strands along the top. Sundry copper tubing and pipe were found outside the fence at the northeast corner of the lot. One officer took the arrested persons to the station while the other stayed for a time with Mr. Foley, who was called to the scene. The officers found a 1966 Chevrolet pickup truck parked about one hundred and fifty yards from the place of defendant's arrest. This truck bore the painted inscription: 'Leo R. Webb, Centerville, Missouri,' It carried no Missouri license plate.
Donald E. Foley testified: that he was the Vice-President and part owner of the Foley Heating & Plumbing Company, a corporation; that it owned the pipe; that when he arrived on the scene he met the officers and was taken to the northeast corner of the lot, where he saw copper pipe on the ground outside the lot; that they found more pipe inside the lot which had been taken from the rack; that he and the officers took the pipe inside the shop and laid it on the floor, where it was photographed by the police the next day; that the pipe which they brought from outside the lot to the shop consisted of 120 feet of two-inch pipe and one hundred feet of one-half inch pipe; that the two-inch pipe cost them $1.80 per foot and the half-inch pipe twenty cents per foot; that he was present when the photographs were taken. He further testified that the pipe was regularly kept in the rack in full lengths, that some of the pipe which they carried in had been cut and 'burred,' and that other pieces had been doubled up and bent.
It was further shown by the testimony of Donald R. Powers, a detective who made an investigation on the next morning, that he checked the lot 'for security' and found that a section of boards had been removed at or near the northeast corner of the fence at a point where the fence ran about two feet above the ground; also, that there were 'fresh' scuff marks in the soil there, not yet dried, indicating that entry had been made at that point. This witness also testified that there were saw marks on some of the pipe; he took several photographs none of which, incidentally, have been sent here on this appeal (an omission which is entirely too common with reference to documentary and photographic exhibits in criminal appeals).
Two police reports were produced by the officers and used by them on the stand. Upon request of defendant's counsel, these were freely furnished to him for his examination. One was a so-called larceny report, and the other an 'investigation' report prepared by the Detective Department. The latter report contained hearsay statements (brought out by defense counsel on cross-examination) to the effect that Ronald Webb, defendant's brother, had borrowed defendant's truck that night, and that defendant got a call from some unknown person at about 10:00 p.m. that his brother was down on 8th Street 'hot rodding' in his truck; also, that defendant and his other brother went down there, found the truck, saw the boys 'behind the garage,' walked over towards them and were arrested; further, that defendant denied 'any part in the theft.' The source of these statements was not shown. Defendant did not testify. After these matters were shown on cross-examination, and without objection, the State offered the report as an exhibit. The Detective who testified was not asked about these statements in the report; Officer McKinnie denied hearing any statement from defendant about the telephone call and the related matters; he did recall that the defendant said he had 'just got there,' and that he was looking for his brother, but he also recalled the prior statement of the defendant that he was just sitting there watching 'the boys steal copper.'
The first point raised by defendant's counsel is that the Court should have given an alibi instruction. No such instruction was offered and the record does not show that an instruction on that subject was even requested. Under these circumstances it is clear that the Court was not in error in failing to give one. State v. Harris, Mo., 356 S.W.2d 889; State v. Keck, Mo., 389 S.W.2d 816; State v. Westfall, Mo., 367 S.W.2d 593; State v. Johnson, Mo., 234 S.W.2d 219; State v. Hutchin, Mo., 353 S.W.2d 701; State v. Fields, Mo., 293 S.W.2d 952. In Harris, supra, it was said that a 'request' for an instruction 'consists of preparing and presenting to the court a written instruction with the request that it be given.' (356 S.W.2d loc. cit. 891) That precise point is not involved here, for the record does not show any request whatever. We deny this point of defendant for the reasons just stated, but we note also in passing that (on the State's evidence, undenied) defendant was found at the scene, just outside the fence, and at a point where sundry copper pipe had been deposited after its removal from...
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State v. Chambers
...an intentional taking of property of another without his consent and with intent to deprive the owner of the use thereof, State v. Webb, 423 S.W.2d 795 (Mo.1968); and four counts of murder, second degree, the elements of which under Section 559.020, supra, are the premeditated, willful, and......
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