State v. Webb, 50535
| Decision Date | 12 October 1964 |
| Docket Number | No. 1,No. 50535,50535,1 |
| Citation | 382 S.W.2d 601 |
| Parties | STATE of Missouri, Respondent, v. Henry Eugene WEBB, Appellant |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for respondent.
Donald S. McDonald, St. Louis, for appellant.
HOUSER, Commissioner.
Defendant Henry Eugene Webb and his brother Louis Webb, Jr. were jointly charged with the crimes of burglary in the second degree of and stealing from the store and bar of Thomas Lee Floyd in the City of St. Louis certain property of the value of $153.70. Each defendant was charged under the habitual criminal act, the information alleging that each had been previously convicted of five felonies. Both defendants pleaded not guilty. Lois Webb, Jr. later withdrew that plea and entered a plea of guilty. Trial of the charges against defendant Henry Eugene Webb resulted in a jury verdict finding him 'guilty of Stealing property in the amount of over fifty dollars' and not guilty of the burglary charge. On a finding that defendant had been previously convicted of five felonies the circuit court adjudged that he be committed to the department of corrections for a period of 6 years. Defendant's trial counsel filed a brief in this court on appeal.
Defendant's sole point on this appeal is that the court erred in overruling his motion for a judgment of acquittal because the state failed to produce any substantial evidence to sustain a conviction on the charge of stealing; that the state's evidence was insufficient to prove that defendant feloniously did take, steal and carry away 33 pints of whiskey worth $33, 4 cases of beer worth $8, the property of Thomas Lee Floyd, and 41 cartons of cigarettes worth $112.70, the property of Guy Vending Company, Inc., with intent to deprive the owner of the use thereof and to convert it to his own use, as charged in the information.
In determining the sufficiency of evidence to sustain a conviction on a motion for a judgment of acquittal the facts in evidence and the favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded. State v. Watson, Mo.Sup., 350 S.W.2d 763, and cases cited 1. c. 766.
The state contends that the evidence of defendant's recent possession of stolen property was sufficient proof that he was the thief to make a case and support the verdict. Defendant contends that the state's evidence and the reasonable inferences to be drawn therefrom might be entirely true and yet the defendant be entirely innocent of the charge of stealing; that at best the state's evidence establishes only that defendant came into possession of the stolen property in conjunction with others after this property was actually taken from Floyd's Bar, but that this is insufficient to convict him of the offense of stealing; that in order for a defendant's recent possession of property stolen in a burglary to afford evidence of his guilt his possession must be personal and exclusive; that this is a case of joint possession of the property in a residence shared by Louis Webb, the admitted thief, Pauline Webb and defendant, with no evidence of conspiracy or a common purpose to commit the offense; and that there was no evidence that defendant exercised any control or dominion over the stolen property, such as claiming it or undertaking to sell it or control its disposition.
Appellant's statement of the facts was adopted by the state as fair and accurate. We draw upon it liberally, without the use of quotation marks, in stating the following facts, which the jury could have found:
Thomas Lee Floyd owned and operated a tavern on North Broadway in St. Louis. Sometime between 2:30 a. m. Saturday, August 3, 1963, when Mr. Floyd closed his tavern for the evening, and 8:45 a. m. August 3, when he returned to his tavern, someone broke into the tavern and took therefrom certain quantities of whiskey and beer, the property of Mr. Floyd, together with a number of cartons of cigarettes, and money from the cigarette machine, the property of Guy Vending Company. The total value of the property removed was over fifty dollars. About 1:30 on Sunday afternoon, August 4, while Mr. Floyd was washing his car in the rear of his tavern he saw defendant and defendant's brother, Louis, in an area close to the back of his tavern at the residence of a Mr. Ray Brawley, the father-in-law of Louis Webb. Defendant and his brother were there from time to time for a period of several hours. Between 4 and 5 p. m. that day Mr. Floyd saw defendant drive away from the Brawley residence in a black 1950 model Ford automobile which 'looked to be heavily loaded,' and about 15 minutes later defendant walked back up the alley to the Brawley residence. The contents of the automobile were not known to Mr. Floyd. At no time while he observed defendant and Louis at the Brawley residence did Mr. Floyd see any of the items taken from his place of business during the early hours of Saturday morning. At about 7:30 or 8 p. m. on Sunday, August 4, Mr. Floyd and his brother-in-law Jasper Valenti saw defendant, Louis Webb and one Robert Nelson on 17th Street, near Madison, carrying what appeared to be beer boxes, a wine case, a black satchel or suitcase, and a fan from the back of the black 1950 Ford which defendant had driven away from the Brawley residence earlier that day. The actual contents of the boxes, wine case and satchel or suitcase were not seen. The three men were transporting these items to defendant's residence, at 1635-A North 17th Street. Defendant made two trips, during which he carried at least 4 or 5 cartons. Messrs. Floyd and Valenti went to police headquarters, conversed with a lieutenant, and thereafter returned to the vicinity of defendant's home, accompanied by three policemen, at approximately 8:30 or 9:30 p. m. Sometime between their arrival and 10:15 p.m. Louis Webb arrived at defendant's residence driving the black 1950 Ford. Louis was then and there placed under arrest. At approximately 10:15 p. m. the three policemen were joined by a police officer. Immediately thereafter the policemen entered defendant's home and found therein defendant, Pauline Webb and Pauline's child. Pauline Webb was the wife of Billy Joe Webb, brother of defendant and Louis. Pauline was living with defendant in defendant's 3-room flat, sleeping in the same bedroom with defendant. Pauline's husband was then serving a term in the city jail. Defendant was placed under arrest and a search of the premises was conducted. A cardboard box containing various half-pint bottles of liquor, vodka and whiskey was found in the kitchen closet. A black carrying case containing various brands of cigarettes was found under the bed in the bedroom and three cases of beer were also found there. Some of the half-pint bottles of whiskey and vodka bore Mr. Floyd's name and his state license number and the cigarettes found bore the city stamp assigned to Guy Vending Company. The whiskey, cigarettes and beer found in defendant's house were the items taken from Mr. Floyd's tavern on North Broadway between 2:30 and 8:30 a. m. on August 3.
Defendant did not take the stand. Several relatives and close associates of defendant testified to facts which, if believed, would have established an alibi. Defendant's brother, Louis Webb, testified that he (Louis) burglarized Floyd's bar on North Broadway...
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