State v. Willis
| Decision Date | 09 November 1959 |
| Docket Number | No. 1,No. 47291,47291,1 |
| Citation | 328 S.W.2d 593 |
| Parties | STATE of Missouri, Respondent, v. Rebert Ronald WILLIS, Appellant |
| Court | Missouri Supreme Court |
Vincent S. Moody, St. Louis, for appellant.
John M. Dalton, Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.
Defendant Robert Ronald Willis was charged with burglary in the second degree and stealing. The information further charged that Willis had previously been convicted of three felonies and had been discharged from the Missouri State Penitentiary. On a trial, a jury found Willis guilty of stealing and not guilty of burglary. The jury found that Willis had previously been convicted and assessed his punishment at imprisonment in the State Penitentiary for a term of ten years. An appeal was taken from the sentence imposed.
At the trial, defendant offered no evidence. He has not filed a brief in this court. We have examined the motion for a new trial for assignments of error. In one of these, defendant complained that the evidence was not sufficient to sustain a verdict of guilty. We find this assignment without merit. The State offered evidence that on the night of June 14, 1958, a store building wherein Robert Stock and Paul Hammond operated a floral shop situated at 3824 Lindell Boulevard, St. Louis, Missouri, was burglarized by the breaking of the plate glass of the front door and a basement window. Approximately twenty various articles were taken. On the day following, which was Sunday, police officers in response to a call went to 4059 Westiminster where defendant occupied an apartment. The police found a suitcase which contained most of the articles taken from the floral shop. Defendant made no explanation of how he came to be in possession of the goods. Robert Stock testified that the articles were worth more than $50. The above facts are sufficient to sustain a verdict of guilty of burglary as well as stealing. The jury, however, found defendant not guilty of burglary. Defendant contended that if the articles stolen were worth less than $50, the punishment of ten years' imprisonment was not justified. Whether the stolen goods were worth $50 was a question for the jury. The evidence justified a finding that the value of the stolen goods was in excess of $50. The trial court, by instruction No. 6, advised the jury that in case it was found that the value of the stolen articles was less than $50, a lesser punishment should be assessed. The point is ruled against the defendant.
Defendant, in a number of assignments, complained that the instructions of the court and the forms of verdict submitted to the jury permitted a conviction of stealing even though the jury acquitted defendant of burglary. Burglary and stealing may be joined in one information. Such a procedure is authorized by Sec. 560.110 RSMo Cum.Supp.1957, V.A.M.S. In such a prosecution, a defendant may be convicted of either or both offenses or he may be acquitted of either or both. In case a defendant is found guilty of stealing and acquitted of burglary, the value of the goods stolen must be $50 or more before a punishment of ten years' imprisonment is justified. Sec. 560.161, subsection 1(2), RSMo Cum.Supp.1957, V.A.M.S. In the case before us, the State introduced such evidence. See State v. Barbour, 347 Mo. 1033, 151 S.W.2d 1105, loc. cit. 1107(2, 3), (4), (5).
In three assignments of error, defendant claimed that one of the articles stolen, a black marble clock valued at $25, was not the property of Robert Stock or Paul Hammond but was the property of Stock's mother. It was in evidence that this clock had been in the family for about 54 years and had been in the storeroom for many years. Such possession was sufficient to make the clock the property of the possessor in a prosecution for theft. 52 C.J.S. Larceny Sec. 13b, p. 811; State v. Nichols, Mo., 130 S.W.2d 485, loc. cit. 487(7, 8).
In assignment No. 11 of the motion for new trial, defendant stated, ...
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State v. Perkins
...that the evidence on behalf of the state is uncontradicted or undisputed, which does not constitute prejudicial error. State v. Willis, Mo., 328 S.W.2d 593, 595; State v. Powell, Mo., 357 S.W.2d 914, 918; State v. Michael, Mo., 361 S.W.2d 664, 666-667[6-8]. Furthermore, the second of these ......
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...state's evidence was uncontradicted is not an improper comment on defendant's failure to testify has been ruled many times. State v. Willis, Mo.Sup., 328 S.W.2d 593, and authorities cited, l.c. 595(7). The argument that only defendant knows where the cigarette cartons are was not a referenc......