State v. Worsham, 52350
| Decision Date | 10 July 1967 |
| Docket Number | No. 2,No. 52350,52350,2 |
| Citation | 416 S.W.2d 940 |
| Parties | STATE v. Missouri, Respondent, v. William Calvin WORSHAM, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Ben Ely, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.
Lawrence O. Willbrand, St. Louis, for appellant.
BARRETT, Commissioner.
William Calvin Worsham, with prior felony convictions, was found guilty of burglary and stealing and the court fixed his punishment at ten years for the burglary and five years for the stealing, the sentences to run concurrently. Specifically the charge was that on September 13, 1965, Worsham broke into a building at West Florissant and Dunn Road belonging to Arthur Enterprises, Inc., operator of 270 Drive-In and stole 'one safe and a Red and Yellow Hand Cart.' The meritorious and principal claim is that since there was no direct proof that appellant 'was present at or near the location of the occurrence in question' his motions for acquittal should have been sustained. Thus the question for determination is whether the fair inferences from the evidence circumstantially support the jury's finding that Worsham broke into the building and stole either of the articles described in the information. Two articles described in the information. (a) that the court prejudicially erred in commenting to the jury at the close of the evidence that 'the power and the responsibility is now yours,' and (b) that the court erred in admitting in evidence two documents showing the appellant's prior convictions.
The 270 Drive-In Theatre is located on a thirty-five acre tract of land and about 650 feet from the theatre screen there is a Two subsidiary assignments of error are known as 'the club house.' This building is occupied and used as the theatre office, storage, cigarette machines, concession equipment, rest rooms and employees' facilities. In the manager's office, 'just painted' green, enclosed in concrete was the theatre safe which on September 13 contained $375.00 in change and currency and a $25 check. Three weeks prior to the burglary the manager had purchased from Central Hardware 'a little hand truck that was red with pneumatic tires' to carry supplies on. At 2 a.m. September 13, 1965, the manager locked the several doors and secured the premises. About eight o'clock the porter called the manager and he returned to find the door into the utility room pried open and ajar, the lock had been broken as had the door to the office. A filing cabinet had ben rifled and there was concrete all over the area from which the safe had been removed. And, the newly purchased handcart was missing.
On the 13th a police officer investigating the burglary found that a tree obstructing a dirt road 175 feet west of the theatre had been moved aside and there was 'one path that was matted down' and in the weeds the officers found a welding tank and acetylene torch, complete with gauges, tools and a pair of canvas gloves. The welding tank and torch, 'a professional cutting outfit,' belonged to the appellant Worsham. It had been sold to him on August 26, 1965, for $110.00 by the Woodson Road Welding Company. On September 15, 1965, just back of Worsham's residence, in an open field alongside a Metropolitan Sewer District ditch, the police found the Arthur Enterprises' safe. There were no observable acetylene torch marks but the safe had been opened and in the bottom of it the police found and preserved 'a round metal washer.' Worsham lived in the Glentown or Ramsey Apartments, 3526 Glentown Apartments. On the evening of the 15th of September the police went to Worsham's apartment, about 8 o'clock, there were at least six people there and one of the women was cooking dinner. After identifying themselves the police arrested appellant and secured his permission to search the apartment. In an upstairs bedroom they found a pair of work trousers which Worsham identified as his own. On this trip the police observed a red handcart in the first-floor bathroom. The officers also found and took a 'green leather suitcase with various tools,' including a metal washer matching the one found in the sale. Both washers 'had microscopic flecks of green point and flecks of white paint on them'--matching the paint in the office and the concrete around the safe. The police took samples and scrapings of green paint from the safe, from a hammer and from the canvas gloves found with the torch. These samples all matched and the debris of 'metal turnings or metal shavings' removed from the cuff of Worsham's trousers matched the metal from the drill holes in the safe. The following day the police returned and the handcart was found in the grass and weeds to the rear of his apartment.
Worsham did not testify but his fiancee who lived at 3550 Glentown did and she said that instead of going to, being in and searching his apartment 3526, the police were in and searched her apartment where she was preparing supper for the appellant, his brother and his wife and their children. She said that the acetylene torch which appellant had used in 'customizing' his automobile had been stored in the basement to her apartment and one day it disappeared, she 'didn't know what had become of it.' She said that her five-year old daughter found the handcart in the weeds back of the apartments, the daughter thought 'it was a wagon' and 'she cleaned it up and left it in her downstairs bathroom.' After the police had been there Mrs. Bennett 'took it back where my daughter found it because I didn't know where it came from so I put it back out in the field where I had found it.'
Thus while there were two versions or points of view as to some of these items, Mrs. Bennett's on the one hand and the police on the other, particularly as to the red and yellow 'handcart' alleged in the information, the jury could reasonably believe the police version and thereby find that Worsham had possession of the handcart recently stolen from the theatre building. The consequence is that the recent, unexplained possession (of Arthur Enterprises' cart) of the stolen handcart, which is not the only circumstance, is a telling factor...
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State v. Cobb
...not impeached, the jury was entitled to disbelieve it and draw an inference unfavorable to him based on his possession. State v. Worsham, Mo., 416 S.W.2d 940, 942(2); State v. Durham, Mo., 367 S.W.2d 619, 622(4). Quite understandably, the jury did not believe the defendant's story that he s......
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