State v. Wyre

• Decision Date: 05 November 1935
• Docket Number: No. 34146.,34146.
• Citation: 87 S.W.2d 171
• Parties: STATE v. WYRE.
• Court: Missouri Supreme Court

87 S.W.2d 171

STATE v. WYRE.

No. 34146.

Supreme Court of Missouri, Division No. 2.

November 5, 1935.

Appeal from Circuit Court, Greene County; Warren L. White, Judge.

Frank Wyre was convicted of burglary in the second degree, and he appeals.

Affirmed.

O. J. Page, of Springfield, for appellant.

Roy McKittrick, Atty. Gen., and Wm. W. Barnes, Asst. Atty. Gen., for the State.

BOHLING, Commissioner.

Appellant was convicted of burglary in the second degree. His punishment was assessed at two years' imprisonment. He appeals.

The information, in addition to the charge of burglary from a dwelling house, charged appellant with the larceny from the dwelling of one overcoat, one sheeplined duck coat, two large rugs, one child's suit, one baby quilt, one dresser scarf, and one towel.

Mr. and Mrs. Herbert Starkey lived at 2621 North Grant street, Springfield, Greene county, Mo. On October 28, 1933, after securely locking his dwelling house, he, with the other members of his household, departed for Windsor, Mo., where they remained until November 2, 1933. Returning to Springfield, they stopped with W. R. Starkey, Herbert Starkey's father, for the night. On November 3, Mrs. Starkey and W. R. Starkey went to the Herbert Starkey home, and discovered that an entrance had been effected into the dwelling by tearing a screen off of a window on the porch and by prying the window open. The doors of the house remained locked. Upon examination, it was discovered that the articles named in the information, as well as other household furniture and equipment, had been removed from the dwelling. The burglary and larceny were reported to the police, and on November 27, 1933, under a search warrant, a search of the dwelling house of appellant was had, with the result that, with the exception of the sheeplined coat, articles of the description set forth in the information, as well as others (which need not be specifically mentioned), were identified and seized. The sheeplined coat was found in the possession of one Delbert Meese, who stated he had secured it from Mrs. Frank Wyre, appellant's wife.

On behalf of the state, the evidence establishes, if believed by the jury, that each of the articles named in the information were in the dwelling house of the prosecuting witness at the time of the departure of the family for the visit to Windsor; that they were next seen in the home of appellant; that they were the property of the prosecuting witness, some of the smaller articles being claimed by Mrs. Starkey; and that each article was positively identified by several witnesses as the property of the Starkeys; and as having been their property for a number of years.

Appellant offered a number of witnesses. These witnesses in most instances, if believed, establish appellant's possession of the articles mentioned in the information for some time prior to the alleged commission of the offense. For instance, appellant testified the rugs were his property, having been purchased through his wife. His wife testified she purchased the rugs at the Springfield Furniture Exchange February 10, 1933, paying cash and receiving a duplicate sales slip; that in January, 1934, she requested employees of the furniture store to check their original records to verify the purchase. On behalf of the state, employees of the furniture store testified to the effect that a record was kept of all transactions, cash or credit; that it was the policy of the store to protect its customers; that these records had been checked for the months of January, February, and March, 1933, and there was no record of any purchase of rugs by Mrs. Wyre. Appellant testified that the coats had been secured by his wife from the Salvation Army some time in September or October, 1933, prior to the commission of the offense. Frank Wyre, Sr., testified the overcoat was the property of appellant. Testimony to like effect was offered as to the other articles mentioned in the information, and, if believed, the evidence established ownership and possession in appellant or his wife of each article for some time prior to the alleged commission of the offense; and justified an acquittal.

One of the state's witnesses testified that he saw appellant getting into an automobile on the evening of November 1, 1933, between 8 and 8:30 p. m. just "cater-corner" across the street from the Starkey home.

Appellant contends the case should not have been submitted to the jury. The contention is based upon the proposition that possession of stolen property must be recent, unexplained, and exclusive, as these terms are understood in the law applying to larceny, to sustain a conviction.

State v. Slusher, 301 Mo. 285, 290(1), 256 S. W. 817, 818[1], in discussing a demurrer where the accused offered and explanation of his recent possession of stolen property, states: "The confusion in that matter, however, has been entirely cleared up in the recent case of State v. Swarens, 294 Mo. 139, 241 S. W. 934, * * * where it is held that the possession of property recently stolen is not a presumption of guilt but is evidence of guilt. Being evidence, it must be weighed by the jury. * * * To find some person in possession of property recently stolen may raise at once in the mind a reasonable inference that the possessor is a thief, unless that possession is satisfactorily explained. The jury are to weigh that evidence. They may or may not believe the explanation." State v. Weaver (Mo. Sup.) 56 S.W.(2d) 25, 26[1]; State v. McBride (Mo. Sup.) 12 S.W.(2d) 46, 48[8].

Appellant stresses the cases of State v. Castor, 93 Mo. 242, 251, 5 S. W. 906, 909, State v. Drew, 179 Mo. 315, 321, 78 S. W. 594, 596, 101 Am. St. Rep. 474, and State v. Warford, 106 Mo. 55, 63, 16 S. W. 886, 888, 27 Am. St. Rep. 322. These cases are to the effect that the accused's possession of recently stolen property must be exclusive, and that mere constructive possession is insufficient, in itself, to sustain a conviction on a criminal charge. Appellant and appellant's witnesses testified to appellant's ownership and possession of specific articles mentioned in the information. His possession of such articles necessarily was actual, with knowledge, and exclusive, and not merely constructive. The fact that appellant's wife may have claimed ownership of certain of the articles found in appellant's home, appellant and his wife occupying the premises as a family abode and appellant having actual knowledge of the possession of the articles as family household goods, is not sufficient to make appellant's possession of such articles constructive. State v. Baker, 264 Mo. 339, 355, 175 S. W. 64, 68[8]; and see State v. Kehoe (Mo. Sup.) 220 S. W. 961, 963 (II) and cases cited.

State v. Jenkins (Mo. Sup.) 213 S. W. 796, 799[9], states: "What is meant by `recent possession' is to be determined from the facts in each particular case. What may be regarded as recent in one case may not be so regarded in another. There is no definite rule, therefore, by which it may be determined. It varies under the facts in the particular case from two years to a period of a few days." In the instant case the articles stolen were household goods, and, if...