State v. Angel

520 S.W.2d 687, 1975 Mo. App. LEXIS 1897
CourtMissouri Court of Appeals
DecidedMarch 3, 1975
DocketNo. KCD 26623
StatusPublished
Cited by4 cases

This text of 520 S.W.2d 687 (State v. Angel) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Angel, 520 S.W.2d 687, 1975 Mo. App. LEXIS 1897 (Mo. Ct. App. 1975).

Opinion

ANDREW JACKSON HIGGINS, Special Judge.

Manson M. Angel was convicted by a jury of stealing property of a value of at least $50. The jury was unable to agree on his punishment and the court fixed the punishment at three years’ imprisonment. § 560.161, V.A.M.S.; Rule 27.03, V.A.M.R.

On Saturday morning, August 28, 1971, Manson M. Angel was a residence manager at the Downtown YMCA, 404 East 10th Street, Kansas City, Jackson County, Missouri. Around 10:30 a. m., he was processing cash and other receipts for purposes of a bank deposit of $896.70. Around noon he told John K. Chatlain, branch executive of the Downtown YMCA, he was leaving to get a flu shot at General Hospital and would return in an hour. After nearly two hours, sometime around 3:00 p. m., Mr. Chatlain checked the deposit envelope upon which defendant had been working. It had been marked “Deposit ready” in defendant’s handwriting, and it had been sealed and secured in a safe. It had not been opened or resealed. When opened by Mr. Chatlain, he found a bank deposit slip for $896.70, $1.70 in change, and a check for $20; $875 was missing.

On the day in question, the outer door of the safe was open; an inner door was locked. There were two keys to the inner door, one in defendant’s possession, and one locked in a cabinet to which only Mr. Chatlain and his secretary had access.

Further office check revealed $90 in coin missing from a safety deposit box. This box had an outer lock system and a padlock on an inner compartment where the $90 ordinarily was kept. Mr. Chatlain and his secretary had access to keys to the outer lock system, but defendant had the only key to the inner compartment.

Defendant did not return to or call the YMCA after leaving on the date in question, nor has he done so at any time, and there was approximately one half a month’s salary of $250 due him.

Defendant’s evidence consisted of testimony from two other employees, not present during the hours in question, intended to show that other employees had general access to the office area of the Downtown YMCA.

Appellant contends (1) “that the evidence was so confusing and insufficient that it does not sustain a verdict of guilty as a matter of law.” In support, appellant cites Kansas City v. Lane, 391 S.W.2d 955 (Mo.App.1965), for the proposition that in determining whether evidence is sufficient to support a judgment, every case must stand on its own facts; State v. Adkins, 222 S.W. 431 (Mo.1920), that opportunity of itself cannot establish guilt beyond a reasonable doubt; State v. Conway, 351 Mo. 126, 171 S.W.2d 677 (1943), that suspicion cannot take the place of evidence necessary to establish the elements of a crime; and State v. Kinnamon, 314 Mo. 662, 285 S.W. 62 (1926), that strong suspicion of guilt is not sufficient to sustain conviction. There is no quarrel with these propositions; however, the cases are factually dissimilar.

[689]*689On this review, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the verdict, and evidence and inferences to the contrary must be rejected. State v. Hicks, 438 S.W.2d 215, 218 [1] (Mo.1969).

The statement in this case, cast in the light of State v. Hicks, supra, demonstrates : that a theft occurred at the Downtown YMCA in Kansas City, Missouri, sometime between 10:30 a. m. and 3:00 p. m. August 28, 1971; that $875. was missing from a deposit envelope secured in a safe and $90 in coin was missing from the inner compartment of a safety deposit box as a result of the theft; that all such property belonged to the Downtown YMCA, and was taken by one or more persons.

In addition to the foregoing circumstantial evidence, defendant concedes that the evidence shows his presence at the scene with opportunity to commit the theft; and it was shown that he had been processing the deposit and carried the only key to the safety deposit box. Also shown was his failure to return, even though due $250 in salary, which, as conceded by defendant, is a circumstance which points to his guilt, and it is of the nature of unexplained flight from the scene of a crime. Cf. State v. Burnley, 480 S.W.2d 881, 883 [3](Mo.1972); State v. Kilgore, 447 S. W.2d 544, 547 [4] (Mo.1969).

The circumstances present raise a fair and reasonable inference of defendant’s act of stealing, and are sufficient to permit a reasonable belief of his guilt beyond a reasonable doubt. State v. Ramsey, 368 S.W.2d 413 (Mo.1963). They show also that this verdict does not rest on suspicion, surmise or conjecture; that they are consistent with defendant’s guilt, inconsistent with his innocence, and point to his guilt so as to exclude every hypothesis of his innocence. State v. Rogers, 380 S.W.2d 398 (Mo.1964) ; State v. Ramsey, supra. Conflicts and credibility questions, if any, raised by the evidence were properly for the jury to resolve, State v. Hadley, 249 S.W.2d 857, 861 [4] (Mo. 1952); and this court does not weigh the evidence where it is sufficient to support the verdict and judgment, State v. Emrich, 250 S.W.2d 718, 725 [7] (Mo.1952).

Appellant contends (2) that the court erred in refusing to give his Instruction A to inform the jury “that defendant need not testify, has the right not to testify and that the jury could not in any manner draw any inference against the defendant because he did not take the stand.”

This case went to the jury December 6, 1972, and appellant admits “that heretofore it has not been the rule that this instruction must be given, if not objected to, in criminal trials in * * * Missouri.” His concession is supported by a long line of Missouri cases which hold that it is not error to fail to instruct the jury on the defendant’s right not to take the stand and testify. See, e. g., State v. McCall, 425 S.W.2d 165 (Mo.1968); State v. Dennison, 428 S.W.2d 573 (Mo.1968); State v. Deiter, 446 S.W.2d 609 (Mo.1969); State v. Scott, 482 S.W.2d 727 (Mo. banc 1972); State v. Hutchinson, 458 S.W.2d 553, 556 (Mo. banc 1970); State v. Smart, 485 S.W.2d 90, 94-96 [9] (Mo.1972).1

By his point 3, appellant would charge the court with error in connection with the argument of the prosecuting attorney.

Appellant failed to preserve this alleged error because no such charge was present[690]*690ed to the trial court in the motion for new trial, Rule 27.20(a), V.A.M.R.; State v. Nolan, 423 S.W.2d 815 (Mo.1968).

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Bluebook (online)
520 S.W.2d 687, 1975 Mo. App. LEXIS 1897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-angel-moctapp-1975.