State v. Bailey

KENNEDY, Judge,

concurring in part and dissenting in part.

I concur with Judge Clark’s opinion affirming appellant’s conviction of a knowing burning of the motorcycle, but I am unable to agree with the reversal of the judgment of conviction for burglary and stealing.

The opinion holds that the evidence, though sufficient to support a conviction of knowingly burning the motorcycle, was insufficient to prove its stealing from the garage.

Here is the appellant, asserting dominion over the motorcycle in the wee hours of the night, seeking help to load it. Failing to *218get help to load it, he sets it afire. The machine is located 100 yards from where its owner left it snugly parked in the garage between 9 o’clock and 10:30 o’clock of the previous evening. The principal opinion says that someone else might have stolen it from the garage, or removed it as a prank, and placed it out on the street, where the defendant found it and decided he would either load it (presumably to haul it away) or burn it. That is farfetched, though, and the jury was not bound to accept it. The state does not have to eliminate all possibility of the defendant’s innocence. It seems to me that we have an analogy in the cases which hold that the unexplained possession of recently stolen property supports a conviction for burglary and for stealing, and that those cases support the conviction of the defendant for burglary and stealing in this case. State v. Myers, 551 S.W.2d 312 (Mo.App.1977); State v. Denison, 178 S.W.2d 449 (Mo.1944).

I would affirm the convictions of burglary and stealing as well as the conviction for burning the motorcycle.