State v. White
| Decision Date | 14 April 1969 |
| Docket Number | No. 53663,No. 2,53663,2 |
| Citation | 439 S.W.2d 752 |
| Parties | STATE of Missouri, Respondent, v. James Frank WHITE, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen. Jefferson City, McCormick v. Wilson, Sp. Asst. Atty. Gen. Jefferson City, for respondent.
James, McFarland & Trimble, North Kansas City, for appellant.
Defendant was charged with attempted burglary of the Penthouse Lounge in North Kansas City with intent to steal certain articles of personal property kept in the building. He appeals from the judgment entered after a jury found him guilty and fixed his punishment at five years' imprisonment. We affirm.
Defendant filed a motion for new trial but it was not filed the time fixed by the trial court. The trial court granted until December 13, 1968, for the filing of a motion for new trial. The motion for new trial actually was filed on December 15, 1968. Accordingly, it is a nullity and preserves nothing for review. State v. Hamilton, Mo., 391 S.W.2d 872. We do, however, consider the point raised in defendant's brief on appeal that the evidence was insufficient to make a submissible case. We review this contention notwithstanding the fact that the motion for new trial was not timely filed because State v. McClunie, Mo., 438 S.W.2d 267, decided March 10, 1969.
The issue whether a submissible case was made necessitates a rather full recital of the evidence introduced. In some instances, this opinion, written on reassignment, may use without quotation marks portions of an opinion which was written but not adopted.
The Penthouse Lounge is a cocktail bar located at 3531 North Oak Street Trafficway in North Kansas City. Liquor and various other goods were kept there for sale. The Penthouse is near the top of a hill as the highway leads north out of the city. It is about two blocks north of the Consumers Cooperative Building which is located on the same street.
At about 1:45 A.M. on January 12, 1967, Carl Summers closed and locked the Penthouse for the night. He first locked both the front door and an outside metal storm type door which was locked with a padlock. At that time there were no pry marks on this storm type door or the door casing. After Summers locked the front of the Penthouse, he put the money away and then left by the rear door, which he also locked.
At 3:35 A.M. of that same morning, Officer Mynatt was conducting a building check in the 3500 block of North Oak. When he drove up to the Penthouse, he noticed a black attache case by the entranceway. He examined it and found that it contained various tools, including a brace, sledge hammer, screwdrivers, a metal cutting saw, wire cutters, a chisel, and other items. In addition, he found on the floor near the door an 18 pry bar, a 12 screwdriver, and a hatchet. The officer described these as burglary tools and testified that they had the appearance of having been dropped and left in a hurry.
The storm type door was secured by a 'hinged type hasp with a padlock on it'. The hasp had been beaten off and was hanging on the door casing and 'there were several pry marks around there where it apparently had been pried on and beaten on'. Officer Mynatt saw no one at the door or near the building, but he notified the dispatcher and Officer Smith came upon the scene and they began a search of the area. About 40 yards east of the Penthouse Lounge, near a small motel unit, the officers found an old abandoned truck with weeds group up around it. They shined their lights under the truck and discovered defendant trying to hide behind the dual wheels. No other person was found in the area.
The officers ordered defendant to crawl out from under the truck and then informed him of his right to remain silent and his right to counsel, including free counsel if he could not afford to pay therefor. He also was informed that he had been found by the officers in peculiar circumstances and was going to be checked in connection with the attempted burglary. Officer Smith then asked defendant whether, with this information in mind, he wanted to answer any questions. Defendant responded that he had nothing to hide.
In the questioning which followed, defendant was asked what he was doing in the area. He stated that he had been hitchhiking and that when he saw the police car coming down the street, he ran and hid under the truck because he was afraid that he would be arrested for hitchhiking. Defendant asked the officers what burglary they were talking about, and the officers informed him that he was being taken in for questioning about an attempted burglary of the Penthouse Lounge. Defendant then informed Officer Smith that he was new in Kansas City and that he did not know anything about a Penthouse Longe or where it was located.
The officers frisked defendant at the scene but found no weapon. They then took him to the police station and booked him, at which time they found that he had a penlight in his pocket, a folded pillow slip in his jacket pocket, and a paper napkin in his shirt pocket on which was written: 'Leaving North Kansas City going north--Co-op two blocks--Penthouse 3531 North Oak.'
In circumstantial evidence cases this court repeatedly has held that the facts and circumstances all must be consistent with guilt of the defendant and inconsistent with any reasonable hypothesis of his innocence. The rule is well stated in State v. Walker, Mo., 365 S.W.2d 597, 601:
It also is established in many cases that in passing on the sufficiency of the evidence to support a verdict of guilty in a circumstantial evidence case, all substantial evidence tending to support the verdict must be...
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