State v. Wilson, 52345
| Decision Date | 10 February 1969 |
| Docket Number | No. 52345,No. 1,52345,1 |
| Citation | 436 S.W.2d 633 |
| Parties | STATE of Missouri, Respondent, v. Robert WILSON, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Peter J. Grewach, Asst. Atty. Gen., Troy, for respondent.
Strop, Watkins, Roberts & Hale, St. Joseph, for appellant.
Defendant was prosecuted under the Second Offender's Act for burglary and stealing and upon the jury's finding of guilty on both charges, the trial court sentenced defendant to terms of six years for burglary and two years for stealing, the sentences to be served consecutively. On this appeal the defendant contends the court erred in submitting to the jury the charge of burglary and in overruling his challenge for cause of a venireman. For the reasons hereinafter set forth it is our judgment that the evidence was sufficient to support the burglary submission and that the trial court did not abuse its discretion in denying the challenge for cause.
On Labor Day, September 6, 1965, between 8:00 o'clock and 8:30 O'clock A.M., defendant and three other men, Victor Harris, Harvey Campbell and Monte Brown, came by Hartwell Fisher's residence in Kansas City. Defendant was driving a black 1956 Mercury automobile. Harris explained to Fisher that his automobile had broken down on the highway north of Kansas City and wanted Fisher to take his car and pull the Harris vehicle into Kansas City. Fisher agreed and Harris accompanied him in Fisher's 1963 Chrysler automobile. Defendant and the other three men followed in the Mercury. When the two vehicles arrived at Camden Point where Harris' disabled car was located, Fisher was told that the others had 'gotten into' a Montgomery Ward store at St. Joseph and they wanted him to take some of the merchandise back to Kansas City in his car. Fisher agreed to accompany the defendant and the other three men and use his car in return for some of the merchandise and some money. The Harris vehicle was left at Camden Point.
The two cars were parked near the Montgomery Ward store in East Hills Shopping Center at St. Joseph and the five men entered the store through one of the front doors. Two of the front doors were locked, but the third door, through which the men entered, was not locked. Merchandise was collected by the five men and carried to the rear of the building near the loading dock. Defendant and Campbell left the store and returned to the automobiles. An overhead garage door to the automobile service center of Montgomery Ward was raised and Campbell drove the Chrysler into this area, followed by defendant in the Mercury. The door was lowered and the group proceeded to load the merchandise into the two vehicles from the loading dock. Defendant then raised the garage door and as the Chrysler moved towards the opening a police car passed and defendant lowered the door.
Lieutenant Farmer and Officer Wells of the St. Joseph police were on a routine patrol of the shopping center about 11:30 o'clock A.M., on September 6, 1965. As the police car neared the Montgomery Ward store the officers could see through the windows of the overhead garage doors of the automobile service area and they saw several individuals moving around and vehicles inside the building. One of the overhead doors partially raised and then lowered. The officers saw several individuals running around inside the service area and then run from the building. Harris, Brown and Campbell were apprehended by the officers nearby but defendant and Fisher were not arrested until later in the day. Lieutenant Farmer chased the defendant and was able to identify him in a line-up Monday night as the same individual he had unsuccessfully pursued.
Inside the automobile service center of the Montgomery Ward building the officers found the 1963 Chrysler and the black 1956 Mercury. Merchandise belonging to Montgomery Ward valued at $31,500.00 was found inside the vehicles.
The outer doors of the Montgomery Ward building consisted of three aluminum front entrance doors, the overhead garage doors on either side of the automobile service center, and a service door near one of the overhead garage doors. All doors had been locked at the close of business Saturday night and management personnel had the keys. The center stile of the front entrance doors had been pried apart and the cylinder lock which locked one door had been removed. Pry marks were found on the aluminum frame above and below where the lock had been located. The overhead garage doors had been secured by padlocks on the inside of the doors. A broken padlock was found on the floor inside the service area near the overhead door which had been opened. The service door had been pried open but a trailer parked on the outside prevented this door from being opened out.
Defendant contends the evidence was insufficient to submit the charge of burglary against him to the jury because there was no evidence that he forcibly entered the Montgomery Ward store, either alone or in conjunction with others. This contention ignores the rule that in determining this issue the facts are to be considered in the light most favorable to the state. State v. Stoner, Mo., 395 S.W.2d 192; State v. Walker, Mo., 365 S.W.2d 597.
The front entrance door through which the defendant and his accomplices entered the retail area of the store had been previously pried open in such a fashion that the cylinder lock had been removed. Pry marks were found on the aluminum frame in the immediate area where the lock had been located. The door had been locked by means of the cylinder lock at the close of Saturday's business, the management had the keys to the lock and no one had been authorized or permitted by the personnel of Montgomery Ward to enter the store between Saturday night and the time the burglary was discovered the following Monday. Additionally, the defendant was identified by Lieutenant Farmer as one of the men he had seen run from the building which bore the physical marks and damage evidencing a forced entry. Further, Fisher had been advised by defendant and his companions that they had 'gotten into' the Montgomery Ward store and wanted him to help transport stolen merchandise from the store to Kansas City. Defendant seeks to isolate a portion of Fisher's testimony that the front entrance door was unlocked and open when defendant passed through it. It is our judgment that when Fisher's entire testimony is examined it is clear that when the five men arrived at the entrance door and gained entry, the door was open in the sense that it was unlocked (by reason of the lock having been previously removed by defendant and his accomplices) but it was not open in the sense that it was standing ajar. Thus, on direct examination of Fisher:
'Q Was the door opened or locked?
'A Two doors were locked and one was open.
'Q Do you know how that door came to be unlocked?
'A No.' (Emphasis added.)
And on cross-examination:
'Q It is your testimony now, you and Harris entered the front door that was already open?
'A Correct.'
'Q When you entered did you sneak around to see if someone was looking?
'A No. I was following Harris and walked straight up to the door.' (Emphasis added.)
In State v. Rhodes, Mo., 408 S.W.2d 68, we said that unlocking and opening a locked door or pushing open a door which is shut but neither locked nor latched, or the opening of a closed door, or the opening of an unlocked door is sufficient to render an entry thus effected, burglary, if done with intent to commit burglary. It is our view that the evidence most favorable to the state, and reasonable inferences therefrom, demonstrate that the defendant's entry into the retail area of the Montgomery Ward store was effected by refendant's and his accomplices' forcible removal of the cylinder lock on one of the locked aluminum doors and subsequently pushing open this door. We further observe that the undisputed fact that defendant's entry into the service area while driving the Mercury automobile was accomplished by the breaking of the padlock which secured the overhead garage door and raising this door. We hold there was ample evidence to show forcible entry with intent to commit burglary.
We turn now to defendant's contention that the trial court erred in overruling his challenge for cause of venireman Wyant. The voir dire of the jury panel revealed that most of the panel had either read newspaper accounts or heard television news reports of the burglarizing of the Montgomery Ward store eight months before. During the examination of Mr. Wyant the following transpired:
PROSECUTING ATTORNEY:
'Q Do you recall having read of this case?
'A Yes.
'Q Does anything in particular stick out in your mind?
'A I remember particularly reading all about it.
'Q On the basis of what you read, did you form an opinion as to the guilt or innocence of this defendant?
'A No, not formed, but...
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