State v. Worley

• Decision Date: 12 February 1962
• Docket Number: No. 49000,No. 1,49000,1
• Citation: 353 S.W.2d 589
• Parties: STATE of Missouri, Respondent, v. BILL WORLEY, Appellant
• Court: Missouri Supreme Court

Page 589

353 S.W.2d 589

STATE of Missouri, Respondent, v. BILL WORLEY, Appellant.

No. 49000.

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1962.

Bill Worley, through his next friend, a lay man unlearned in Law.

Thomas F. Eagleton, Atty. Gen., Lynn B. Nelson, Sp. Asst. Atty. Gen., for respondent.

HOLLINGSWORTH, Judge.

The tavern of Mr. and Mrs. Henry Sauer, located in Laredo, Grundy County, Missouri, was burglarized on the night of January 17, 1961, and money, cigarettes and other merchandise of the total estimated value of $377.00 were stolen from the premises. On the same night the Hathaway Grocery, at Spickard, Grundy County, was also burglarized. Defendant Bill Worley and one Richard Earl Jones were arrested and charged with the commission of these offenses. By an amended information thereafter filed, defendant was separately charged with the offenses of burglary in the second degree of the Sauer Tavern with intent to steal, as that offense is defined in Section 560.070 RSMo 1959, V.A.M.S. (to which revision all statutory references herein are made), and with stealing from said tavern the hereinafter more particularly described personal property, as that offense is defined in Secs. 560.156 and 560.110. The amended information also invoked the provisions of the habitual criminal act, Sec. 556.280, by alleging a prior conviction of defendant of burglary.

The jury found defendant guilty as charged. The trial judge, after hearing evidence out of the presence of the jury, also found that defendant had been convicted of the prior felony as alleged in the amended information. His punishment was assessed at imprisonment for a term of ten years on the charge of burglary and a term of five years for the crime of stealing. The court further ordered, however, that said sentences run concurrently and not consecutively. Defendant has appealed.

Although represented by court-appointed counsel at the trial, the only brief filed in defendant's behalf in this court is a document entitled 'Appellant's Brief, Bill Worley, through his next friend, a lay man unlearned in Law.' That document asserts the insufficiency of the evidence to support the verdict and thereafter pursues a course of argument clearly beyond and independent of the grounds assigned in the motion for new trial. If that document were considered in the light of S.Ct. Rule 28.02, V.A.M.R., all assignments in the motion for new trial, except the contention also made therein that the evidence was insufficient to support the verdict, would be deemed waived or abandoned. However, we will also review the other assignments in the motion for new trial and portions of the record, as required by Rules 27.20 and 28.02.

The evidence to connect defendant with commission of these crimes was entirely circumstantial. It warrants a finding of the following facts: The tavern, which was owned and operated by Mr. and Mrs. Sauer, also included a restaurant and laundry. It closed and its doors and windows were locked about midnight on the night of January 17. The fact that it had been burglarized was discovered about 3:00 to 3:30 o'clock on the morning of the 18th. State Patrolman Julian LePage had been called that morning by the Sheriff of Grundy County to investigate the burglary of the Hathaway Grocery at Spickard. While at Spickard, he learned of the burglary of the Sauer Tavern at Laredo. Investigation made at the Sauer Tavern revealed that the front door and two inner doors had been pried open by a tool with a chisel-type end. Further investigation of the premises revealed that about 80 cartons of Pall Mall cigarettes purchased by Mr. and Mrs. Sauer from Bond's Wholesale House in Trenton had been stolen; the cash register had been opened and approximately $50.00 stolen from it; a coin-changing machine had been pried from its fastening on the blue plaster wall and had been forcibly opened; the doors of a pinball machine and a music box had also been forcibly opened and coins in each of these containers had been stolen. These articles, together with a specimen of the blue plaster wall from which the coin-changing machine had been removed (and wood from the doorsills of the Hathaway Grocery at Spickard), were delivered to Kenneth Miller, a State Highway Patrolman assigned to the laboratory of that institution, for microscopic examination.

Richard Jones lived in Lebanon; defendant lived near Lebanon. They are cousins. Max Hayden and his wife, Eula, are the uncle and aunt of both defendant and Richard Jones. The Haydens came to live in Laredo about two years prior to the burglary. Richard Jones worked at various intervals of time for Max Hayden and they, Richard and Max, frequented the Sauer Tavern. Defendant was also seen on occasions with Richard Jones in and around Laredo and they were together at the Max Hayden home about 8:00 to 9:00 o'clock on the night of the burglary.

On the date of the burglary, the night of January 17, 1961, Norman E. Tinnin, a State Patrolman, was stationed at Lebanon. He knew defendant and Jones and, for about two weeks prior to the burglary, had observed them riding together in a black 1951 4-door Studebaker sedan driven by defendant. On the morning of January 17, Patrolman Tinnin saw this car parked in an alley near the home of Richard Jones' mother in Lebanon. At that time it bore 1960 Johnson County, Kansas, license plates, JO 53 859.

On the night of January 17, between 9:00 and 10:00 o'clock, Gail Tate, manager of the M.F.A. Central Co-operative Store at Laredo, drove his car from Trenton to Laredo. On that trip he saw a 1951 black 4-door Studebaker car 'back out' of a gate that entered his property. He followed the car into Laredo, during which time he 'jotted down' the license number attached to it, which was the aforesaid Kansas plate JO 53 859. He also saw that there were at least two men riding in the car. He related these facts to Patrolman LePage the following morning after hearing of the aforesaid burglary. About 3:00 o'clock on the morning of January 18, John Creten, who lives at and operates the 'Trenton Bowl', saw a 1951 black Studebaker sedan bearing a Johnson County, Kansas, license, drive twice around his premises. Its lights were turned off. At least two men were in it. On the same day, January 18, Patrolman LePage, after talking with Gail Tate, went with Sheriff Mapes to the home of Max Hayden. They there observed in front of the Hayden home a 1949 Plymouth sedan without any license plate on it.

About midnight on January 21, Patrolman Tinnin and other officers saw the 1951 black Studebaker parked at the home of defendant's parents about eight miles from Lebanon. At that time it bore a 1960 Missouri license plate, No. A96-485. Investigation revealed that that plate had been issued to defendant's uncle and aunt, Max and Eula Hayden, of Spickard, Grundy County, for a 1949 Plymouth sedan. Tinnin and other officers thereafter continued their observation of the black Studebaker. On January 23, Tinnin and Lebanon Police Officer Bill Marley went in search of defendant to arrest him. They found the black Studebaker parked at the residence of Richard Jones' mother in Lebanon. There was then no license plate whatever attached to it. In the car they found a combination lug and tire tool, a pinch bar, and a partially consumed carton of Pall Mall cigarettes. These cigarettes bore the same serial number as those purchased by Mr. and Mrs. Sauer from the Bond Wholesale House and stolen from the Sauer Tavern. Defendant was arrested and the Studebaker car and the aforesaid items found therein were seized. The items found in the car were delivered to Patrolman Julian LePage, who, in turn, delivered them to State Patrolman Kenneth Miller for examination and microscopic study at the State Highway Patrol laboratory. Defendant admitted to Patrolman Tinnin (and other officers) that he had been in Grundy County on January 17, 18 and 19, and that the Studebaker car belonged to him. He said he would get a proper license for it. On January 25, defendant, in talking with Patrolman LePage, admitted that he, driving the Studebaker, left Lebanon at approximately noon on January 17, accompanied by Richard Jones; that they arrived at Laredo about dark; but further said that they drank beer at the Sauer Tavern until 9:00 or 10:00 o'clock and then went to the Charley Dye Tavern on Highway 6, west of Trenton; and that they stayed at the Dye Tavern until 11:00 or 11:15 p. m., and then drove to Kansas City. On March 16, 1961, upon being released from jail on bond, defendant obtained from the Automobile Registration Department of Missouri a certificate of title and a 'new license' for the 1951 black Studebaker, for which he remitted $1.00 and $20.00, with tax of $1.00, total $22.00. The application made by him recites that he paid $50.00 for the car and that he had purchased it 'Jan. 1961' from Paul A. and Edna Freeland, 'K.C., Mo.'

Microscopic examination of the pinch bar found in defendant's car at the State Highway Patrol laboratory revealed small amounts of blue painted plaster impressed upon its edge. The plaster found on that bar had paint on it of the color and composition of the paint on the plaster taken from the Sauer Tavern wall to which the coin changer had been attached. The tire tool and the pinch bar also bore minute microscopic traces of various types of white, green, reddish orange, yellow and more white paint, which corresponded with various coats of paint which at previous times had been applied to the plaster to which the coin changer had been attached. Comparison of each of these paints with those found on one of the tools showed them to be alike. A greenish yellow paint found on one of the tools was like the greenish yellow paint found in the interior of the coin changer. A reddish yellow paint found on one of the exhibits corresponded with a reddish yellow paint found on one of the tools. Microscopic examination of the dents...