State v. Whaley

Decision Date23 July 1974
Docket NumberNo. 35268,35268
PartiesSTATE of Missouri, Plaintiff, v. Walter W. WHALEY, Defendant. . Louis District, Division Two
CourtMissouri Court of Appeals

Joseph S. Sanchez, Public Defender, Hillsboro, for appellant.

John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.


This is an appeal by defendant, Walter W. Whaley, in a court tried case, from a judgment of conviction entered by the circuit court of Jefferson County, Missouri, for burglary in the second degree, and burglarious stealing, § 560.110, RSMo 1969, V.A.M.S., and a sentence of five (5) years on each Count in the custody of the Department of Corrections.

Defendant alleges that the court erroneously (1) admitted the testimony of an unendorsed witness; (2) admitted testimony as to the ownership of property contrary as to the ownership described in the information; (3) admitted opinion evidence as to the description of a diamond ring; and (4) submitted case to the court because of an insufficiency of evidence. Our review indicated that none of defendant's allegations have any merit, but claim number three, however, the error, if error, is harmless; therefore, we affirm.

Because of defendant's claim as to the sufficiency of the evidence, we set out the evidence somewhat in detail. On January 8, 1972, defendant and an unknown lady rented a basement apartment from Mrs. Martin in Festus, Missouri, on a week to week basis. Defendant's lady friend paid the last rent on February 26, 1972, which paid it up to March 4, 1972.

The other basement apartment, to the south of defendant's apartment, was occupied by Mr. and Mrs. Donald E. Williams, both school teachers, who had lived there for fifteen years. On February 28, 1972, after the Williams had returned from school about 3:30 P.M., Thelma Williams told Donald that she was missing some money, and a white gold ten point diamond set, her wedding band and engagement ring. Upon being told this Donald checked his strong box--he found missing Seven Hundred Dollars ($700.00) in American Express Traveler's checks and a .38 caliber revolver. Immediately thereafter he called the police. Introduced as exhibits were: (1) a list of the Traveler's checks' numbers (kept by Mr. Williams), and three Traveler's checks (each check number was contained on the list kept by Mr. Williams). Undisputed testimony showed that in May, 1972, defendant negotiated each of the three checks and signed his name as Eugene Williams. Evidence also showed that in consideration for the negotiation of the checks, defendant gave the casher of the checks a five dollar windfall.

Mr. Williams' south apartment was separated from defendant's north apartment by a furnace room and either a plaster board or chalkboard wall. To enter the furnace room one had to enter from either the Williams' or defendant's apartment. To enter from the Williams' apartment, one had to enter a closet and remove a rectangular wallboard secured by six screen door type hooks. Stated another way, to gain entrance from the furnace room the wallboard would have to be pushed into the Williams' closet thereby pulling the eye hooks from the wall. To gain entrance into the furnace room from defendant's apartment, one entered through a door which was secured from the inside of defendant's apartment. In other words, if one was in the furnace room and he wished to enter defendant's apartment he could not do so unless defendant had left the door unlocked from the apartment side.

When Mr. Williams investigated he found that the rectangular wallboard inside his closet which had been secured with six eyelet hooks was only secured by two--one on each side in the center of the wallboard. Also on the inside of his closet he found powdery white chalk. Upon investigation by the police, they, too, found the chalky substance and by virtue of the chalk they found footsteps that went northwardly from the rectangular wallboard, sealing off the Williams' apartment from the furnace room to the defendant's unlocked entrance door into the furnace room.

Granted the evidence as to the burglary was circumstantial, but this court has held that circumstantial evidence is sufficient to support a conviction for burglary and stealing, State v. Durham, 367 S.W.2d 619 (Mo.1963) and State v. Smith, 357 S.W.2d 120 (Mo.1962). The test to be applied when testing the sufficiency of the evidence is whether or not such evidence is consistent with defendant's guilt and inconsistent with any reasonable hypothesis of his innocence. In this respect, the evidence and the reasonable inferences to be deduced therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary to be ignored, State v. Vineyard, 497 S.W.2d 821 (Mo.App.1973) and State v. Colthorp, 437 S.W.2d 75 (Mo.1969). If after this examination, it is reasonably determined that the jury could have found the defendant guilty then our conclusion must be that the verdict was supported by substantial evidence, State v. Taylor, 445 S.W.2d 282 (Mo.1969).

Applying the above criteria, we find the jury could have reasonably found from the Williams' testimony that they locked and secured their home when they left the morning of February 28, 1972. Upon returning, both discovered items missing from their apartment, including three Traveler's checks belonging to Mr. Williams and his wife's white gold wedding ring set. Upon immediate investigation by Mr. Williams, it was disclosed that te panel leading from his closet into the furnace room had been tampered with. A further investigation indicated that there was no forced entry into either Mr. Williams' apartment or defendant's from the outside.

A police officer testified that he found footprints leading from the wall panel in the Williams' apartment to the defendant's apartment and that the entrance door to defendant's apartment from the furnace room was open. A juvenile, who knew defendant, testified without contradiction, that defendant gave him the three Traveler's checks to cash at various banks; that he saw defendant sign the name 'Eugene Williams' to the checks before turning them over to him and that he received money from defendant to cash the checks. These three checks were positively identified by Mr. Williams by a serial number list retained by him.

From the above evidence criminal agency was shown because there can be no doubt that an unlawful entry was made into the Williams' apartment and his gun and Traveler's checks were taken without his permission, State v. Papin, 386 S.W.2d 355 (Mo.1965); § 560.045, RSMo 1969, V.A.M.S. and § 560.156, RSMo 1969, V.A.M.S. Besides, the juvenile's testimony established that defendant's possession of the Traveler's checks was exclusive. Moreover, defendant's possession of the stolen checks remained unexplained throughout the trial. The evidence disclosed that defendant's exclusive and unexplained possession of the Traveler's checks, eight to ten weeks after their theft, was sufficient to establish his criminal agency in the crimes charged, State v. Lewis, 482 S.W.2d 432 (Mo.1972); State v. Clark, 438 S.W.2d 277 (Mo.1969) and State v. Miller, 360 S.W.2d 633 (Mo.1962). We reject defendant's claim that his possession of the checks was too remote. The question whether defendan...

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15 cases
  • State v. Hodge, 13154
    • United States
    • Missouri Court of Appeals
    • June 30, 1983
    ...When an action is to the court sitting without a jury, the rules of exclusion of evidence are less strictly enforced. State v. Whaley, 512 S.W.2d 431, 435 (Mo.App.1974). The admission of improper evidence in a nonjury case is not ordinarily a ground for reversal, at least where it did not p......
  • Coletti v. State
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    ...from that which may be properly considered. See Salem v. Flowers, 26 N.C.App. 504, 216 S.E.2d 392, 393 (1975); State v. Whaley, 512 S.W.2d 431, 435 (Mo.App.1974); 89 C.J.S. Trial, § 589, pp. 373-74 (1955). In this case, the district court stated on the record that the letter was quashed and......
  • State v. Nevels
    • United States
    • Missouri Court of Appeals
    • June 1, 1976
    ...most favorable to the state, and reject all contrary facts and inferences. State v. Gantt, 504 S.W.2d 295 (Mo.App.1973); State v. Whaley, 512 S.W.2d 431 (Mo.App.1974); and State v. Morris, 518 S.W.2d 79 (Mo.App.1974). Notwithstanding the irreconcilability between defendant's first assignmen......
  • State v. Leigh, 38531
    • United States
    • Missouri Court of Appeals
    • February 27, 1979 issue; when an action is to the court sitting without a jury, the rules of exclusion are less strictly enforced. State v. Whaley, 512 S.W.2d 431, 435(7) (Mo.App.1974). It is assumed that the trial court will not be confused or misled by what is irrelevant and incompetent. There is no rul......
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