State v. Chase

STORCKMAN, Judge.

The defendant was convicted of stealing a ring valued at more than $50. Sections 560.156 and 560.161, RSMo 1959, V.A.M.S. The jury assessed his punishment at two years in the custody of the Department of Corrections. The issues presented by the defendant on appeal relate to the sufficiency of the evidence.

On December 27, 1963, shortly before 5 p. m., the defendant accompanied by a woman and another man, “a short, chunky colored man”, entered West’s Jewelry Store in Fulton which was owned and operated by Claud West. The store was about 18 feet long and 16 feet wide, with showcase counters on each side and an aisle in the middle. Jewelry was shown on top of the cases or counters and customers stood while they were viewing it. The defendant asked to see some men’s quarter carat diamond rings. Mr. West brought out men’s rings and put them on top of the showcases. The defendant went to the door and pointed to a ring in the window. Mr. West got one or two out of the window, the rest he got out of a showcase. As he recalled, there were “three in the box and maybe two or three in a tray.” The tray also contained ring mountings without stones.

The defendant looked at the rings, picked up one, looked at it, shook his head and said it was high. He put that ring back in the tray; it was originally in a box. The woman and other man also stood along the counter and looked at the rings, but the defendant was the only person Mr. West saw handle anything although the others could have. Mr. West also showed the defendant some unset diamonds which he brought from a table near the watch counter. He displayed the diamonds under a light and explained the difference in grade and the reason for the fluctuation in prices. While he was doing this, the woman and other man were looking around and also looking at the diamonds. He did not know what they were doing all of the time. The defendant finally walked over towards the door and one of them said, “Let’s go.” The defendant and his companions were in the store not over ten minutes.

The rings had remained on top of the showcase all the time the defendant and his companions were in the store. After they left, Mr. West discovered that two of his rings were missing. One of the boxes had a ring in it that did not belong to him; he referred to it as “a phony ring”. Mr. West called the local authorities. A deputy sheriff learned that a 1961 Thunderbird with a Missouri license numbered KZ0872 had been in the vicinity of the jewelry store at the time in question. The license had been issued to defendant. A warrant for defendant was issued and a pickup order sent to the police in St. Louis.

Mr. West further testified the defendant was the only one that did any talking while *401in his store. Although the woman may-have made some remark, the other man did not say a word. This other man did not ask to see the rings and did not pick them up and handle them. The woman did not pick them up or handle them. The only person who Mr. West saw handle anything in his store was the defendant.

On January 10, 1964, a St. Louis police officer, James Weber, who was acquainted with defendant and knew about the arrest warrant and pickup order, arrested defendant around 2:25 p. m. at the intersection of Seventh and Olive Streets in St. Louis. When halted by Weber, the defendant was riding in the left rear seat of his 1961 Thunderbird. A woman was sitting in the back seat with the defendant. The car was being driven by a second man and another woman was sitting in the right front seat.

When Officer Weber stopped the car, he opened the door on the right-hand side, ordered defendant out of the vehicle and informed him he was under arrest. Officer Weber was assisted by another St. Louis policeman, Officer Tindall, who was on duty nearby. The officers searched defendant alongside his car for a weapon, found none, and then ordered him into the patrol car. They also ordered the driver of the Thunderbird out of the car and searched him for a weapon but found none. The women were net searched. The driver was told to get back in the defendant’s car and instructed to drive it to police headquarters. Officers Weber and Tindall followed it in the patrol car taking the defendant with them.

Police headquarters were at Twelfth and Clark which was seven or eight blocks from the scene of the arrest. Upon arriving there, both cars were placed on the parking lot at the rear of the building. The defendant was taken inside by Officers Weber and Tindall. The defendant’s companions waited on the parking lot. The defendant was kept in the police station. When Officer Weber returned to the parking lot, the defendant’s three companions were standing alongside the defendant’s automobile. Officer Weber searched the defendant’s Thunderbird and found a yellow metal man’s ring with five white stones in a white metal setting on the floor “approximately where the defendant was sitting” in plain view. This ring was identified by Mr. West as one of the missing rings valued at $100. Officer Weber testified it was approximately 10 to IS minutes from the time defendant was apprehended on Olive Street until the car was searched on the police lot.

Defendant’s three companions were not arrested. The record is silent as to their identity and whether any of them were with the defendant in Fulton. The defendant offered no evidence.

In determining the sufficiency of the evidence in a criminal case after a verdict of guilty, the court accepts as true all evidence in the record tending to prove the defendant’s guilt, whether such evidence is circumstantial or direct in nature, together with all favorable inferences that can reasonably be drawn therefrom and disregards all contrary evidence and inferences. State v. Webb, Mo., 423 S.W.2d 795, 799[6]; State v. McClinton, Mo., 418 S.W.2d 55, 57[2]; State v. McGlathery, Mo., 412 S.W.2d 445, 447[1]; State v. Morris, Mo., 307 S.W.2d 667, 688[1]; State v. Bayless, 362 Mo. 109, 240 S.W.2d 114, 118—119[1]. The Bayless case states that “in ruling the issue presented we are required to view the whole evidence in a light most favorable to the State.”

The first of defendant’s “POINTS” is the general statement that: “The State offered no direct nor positive evidence establishing the charge of ‘Stealing’ as to this Defendant, there being no positive identification of the property alleged stolen (■State Exhibit 2).” Exhibit 2 is the ring found in the defendant’s Thunderbird when the defendant was arrested in St. Louis. The evidence traces the custody of the ring from the time it was discovered in the *402automobile until it was offered in evidence at the trial. The ring had an unusual number and arrangement of stones and bore the mark of the manufacturer but not of the West Jewelry Store. Mr. West testified that it was the ring which disappeared from his store on December 27, 1963, although he could not say that no other similar rings existed. The proof that exhibit 2 was in fact the stolen ring is also bolstered by the fact that it was found in the automobile of the defendant who was present in the Fulton jewelry store when the ring disappeared. Any fact, including criminal agency of the defendant and the identity of the property stolen, may be proved by circumstantial evidence. State v. Brewer, Mo., 325 S.W.2d 16, 20[11]. The ring was sufficiently identified and was properly admitted in evidence. State v. McCormack, Mo., 263 S.W.2d 344, 346[3]; State v. Gyngard, Mo., 333 S.W.2d 73, 79[10], 90 A.L.R.2d 639; State v. Page, Mo.App., 192 S.W.2d 577, 578[3]. The defendant’s contention is denied.

Following this initial statement are four paragraphs in the nature of statements of position which hardly satisfy S.Ct.Rule 83.05(a) (3), V.A.M.R., but we will undertake to consider them. The defendant asserts the fact that he was present at the time the property was stolen is insufficient to support his conviction of its theft, citing State v. Favell, Mo.App., 411 S.W.2d 245. In Favell the evidence showed that the defendant was seen standing in front of an office from which a typewriter was stolen and that he was present with three other men who were arrested emerging from an alley with an enclosed cardboard box containing a typewriter. This evidence was held insufficient to support the defendant’s conviction in the absence of showing that he had entered the office, that he saw or could have seen the typewriter inside or a showing of how long the office was unoccupied. The evidence is much stronger in the case at bar. The defendant was shown to be in the jewelry store at the time the ring was stolen, he handled at least one of the rings and was in a position to have committed the theft and the ring was found in his automobile about ten days later. The Favell case is not persuasive on the facts of this case.

The remaining contentions are so intermingled and uncertainly stated that it is difficult to understand precisely what reasons are being urged. For instance, one of the statements is that possession of recently stolen property “is not sufficient evidence of ownership to overcome the presumption of innocence to warrant a conviction.” The “ownership” is not related to any particular thing, nor is there any specification of the particulars in which the proof of ownership is deficient. Appellate courts are not required to speculate concerning what particular error is sought to be charged. State v. Peterson, Mo., 154 S.W.2d 134, 138[5], Ownership of the stolen ring was adequately proved. It is further stated that it must be shown that the “identical property” was found in the defendant’s possession. The proof on this score was also quite adequate.

Further assertions are that the stolen property must be shown to have been “found in the EXCLUSIVE possession” of the defendant, that the evidence “does not warrant any inference that he was the thief UNLESS such possession was RECENT and EXCLUSIVE” and that possession of recently stolen property “raises no presumption of guilt as to theft” and does not warrant a conviction. Cited in support of these assertions are State v. Lackland, 136 Mo. 26, 37 S.W. 812, State v. Durham, Mo., 367 S.W.2d 619, State v. Fogle, 211 Mo.App. 18, 244 S.W. 105, State v. James, 133 Mo.App. 300, 113 S.W. 232, State v. Deckard, Mo., 37 S.W.2d 414, State v. Duncan, 330 Mo. 656, 50 S.W.2d 1021, and State v. Matticker, Mo., 22 S.W.2d 647. Examination of these cases demonstrates that they are not controlling on the facts proved in this case.

The unexplained possession of recently stolen property is a sufficient cir*403cumstance to sustain a conviction of stealing- the property. State v. McClanahan, Mo., 419 S.W.2d 20, 21[1]; State v. Jones, Mo., 358 S.W.2d 782, 784[2], The defendant infers, however, that the possession was not recent. The ring was stolen December 27, 1963, and was recovered on January 10, 1964, which was fourteen days later. The loss was discovered and reported immediately. A warrant for the defendant’s arrest was issued and a pickup order sent to St. Louis. Clearly, the ring found in the defendant’s automobile is in the category of recently stolen property. When possession of recently stolen property is proved and not explained, an inference may be drawn that the possessor is the thief even though his presence at the scene of the crime is not shown. Complete reliance on the inference is not necessary in the instant case because there is direct evidence that the defendant was present when the ring was stolen and was in a position to have committed the theft.

In written argument the defendant states that there can be no inference that the ring was in his possession because he was not an occupant of the car from the time of his arrest to the time of the search and seizure. The evidence is that this interval was from 10 to 15 minutes. During part of this time the defendant’s automobile was being driven to the police station with the patrol car following. The complaint is without merit. In State v. Meeks, 327 Mo. 1209, 39 S.W.2d 765, 768[2], it was held in a burglary prosecution that admitting a constable’s testimony that he found packages in the defendant’s automobile after it had been parked near the jail for two days and one night was not error.

Finally, the defendant asserts that the stolen ring, exhibit 2, was not shown to have been in the defendant’s possession, exclusive or otherwise. To create an inference of guilt, the term “exclusive” does not mean that the possession must be separate from all others provided there is other evidence to connect the defendant with the offense. State v. Jordan, Mo., 235 S.W.2d 379, 383 [10]. In the recent case of State v. Webb, Mo., 432 S.W.2d 218, 222 [6], this court held that “the possession of recently stolen goods which will support an inference of guilt may be a joint possession of a defendant and another, and that such possession need not be separated from all possession by others.” In State v. Webb, Mo., 382 S.W.2d 601, 604[2-6], possession was held to he sufficiently proved where stolen goods were found in a closet and under a bed in the defendant’s residence although the house was also occupied by the defendant’s brother and his sister-in-law. The situation in this case is quite unlike State v. Watson, Mo., 350 S.W.2d 763, 767[2], where the defendant’s only proved connection with the offense was his riding as a passenger in an automobile owned and operated by another which was carrying the stolen goods. The fact that the stolen ring was found in the defendant’s automobile near where he was seated considered in connection with his presence in the jewelry store when the ring was stolen and his conduct at that time justifies an inference that the ring was in his possession at the time the police officers stopped his car.

The presence of the accused at the place of the commission of a criminal offense may be considered along with other incriminating evidence to determine if the total circumstances raise a reasonable inference that the accused was a participant or an aider or abettor in the crime. State v. Ramsey, Mo., 368 S.W.2d 413, 418[9] ; State v. Castaldi, Mo., 386 S.W.2d 392, 395[2], Evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction. State v. Butler, Mo., 310 S.W.2d 952, 957[7]; State v. Ramsey, Mo., 368 S.W.2d 413, 418[9]. From the defendant’s presence and conduct in the jewelry store, an inference may reasonably be drawn that he was an active participant in the theft of the ring. He asked to be shown men’s rings and did most, if not all, of the talking. He is the only one that was seen to handle *404any of the rings. He took a ring from a box and put it back in the tray. When he and his companions left, a “phony ring” was found in the box. His automobile was used to transport them to Fulton. This evidence is further buttressed by the fact that the stolen ring was found in his automobile after he was arrested for stealing it.

The supreme court on review must indulge in a presumption of right rather than wrong action by the trial court, and the burden of demonstrating error and prejudice by reason of the denial of a motion for a directed verdict rests upon the convicted defendant. State v. Latham, 344 Mo. 74, 124 S.W.2d 1089, 1090[4]; State v. Glenn, Mo., 262 S.W. 1030, 1032[2]; Pritchard v. United States, 386 F.2d 760, 763[2]; Neubauer v. United States, 250 F.2d 838, 839[1], cert. den. 356 U.S. 927, 78 S.Ct. 715, 2 L.Ed.2d 758. A mere possibility of innocence is not sufficient to justify a holding that the evidence is insufficient to support a verdict of guilty. State v. Spraggins, Mo., 368 S.W.2d 407, 411[7],

State v. Tettamble, Mo., 431 S.W.2d 441, involved the use of circumstantial evidence in a murder case. This court stated that the jury may consider all of the evidence in determining guilt and that the defendant was not entitled to an instruction that the jury should acquit if it had a reasonable doubt as to the evidence of a singled-out fact. The court further held: “The measure of reasonable doubt need not be applied to the specific detailed facts, but only to the whole issue.” 431 S.W.2d 441, 443[4-7], The evidence in the instant case must be considered in its entirety; its probative value is strengthened by the relation of the parts to each other. When so considered, the evidence amply supports the verdict of guilty.

The judgment is affirmed.

HENLEY, FINCH, DONNELLY and MORGAN, JJ., concur. SEILER, J., dissents in separate dissenting opinion filed. HOLMAN, C. J., dissents.