State v. Brame

542 S.W.2d 591, 1976 Mo. App. LEXIS 2640
CourtMissouri Court of Appeals
DecidedOctober 12, 1976
DocketNo. KCD 28195
StatusPublished
Cited by8 cases

This text of 542 S.W.2d 591 (State v. Brame) 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. Brame, 542 S.W.2d 591, 1976 Mo. App. LEXIS 2640 (Mo. Ct. App. 1976).

Opinion

WASSERSTROM, Judge.

Defendant was charged by information with stealing three blank checks and three watches, those items having an aggregate value in excess of $50. The jury found defendant guilty but was unable to agree on punishment. The trial court fixed punishment at 10 years and entered judgment thereon, from which defendant appeals.

The conviction was based entirely upon circumstantial evidence. The State’s primary witness, Arthur E. Ozias, is defendant’s uncle by marriage. Defendant’s 91 year old grandmother, who is also Ozias’ mother-in-law, lived with Ozias. Defendant occasionally visited his grandmother at the Ozias home. On the date in question, January 15, 1975, Ozias had left for work at approximately 8:00 a. m., leaving his mother-in-law at the house. Since Ozias’ wife was away on a trip, Ozias returned home several times during the day to check on his mother-in-law, one of such visits being about noon, and Ozias left again about 1:00. At that time, everything was as usual.

[593]*593Ozias again returned to the house about 2:30 to 3:00. He observed defendant and a companion leave the house hastily as he arrived. This was the first time Ozias had seen the defendant for “quite some time.” When Ozias went to his bedroom, he found the dresser drawers open and various items disturbed. He discovered that three watches and two rings were missing from his bedroom. Items in two other rooms of the house had also been disturbed, and Ozi-as testified that he specifically remembered seeing one of the watches earlier that morning. The testimony revealed that defendant’s grandmother was down the street at a neighbor’s and was not in the house at the time that Ozias arrived and defendant left. The total value of the items stolen, according to Ozias, was approximately $475, and the watches specifically were worth $350. The theft was reported to the police.

Two days later, on January 17, defendant was arrested for a traffic violation while driving a car with two companions as passengers. A search of the car revealed three checks of Ozias’ company beneath a floor mat in the front seat. When the police notified Ozias, he ascertained the checks to have been taken from the Ozias Electric Company checkbook which had been in Ozi-as’ house on January 15. None of the other items stolen in the course of the burglary were ever located. The three checks taken from the Ozias Electric Company checkbook were not the top three, and Ozias could not affirmatively state that the checks were taken on January 15. There was also testimony that the checkbook was stored alternately at the home and the office of Ozias. There was no specific testimony as to the value of the checks, although the prosecutor commented that they were probably worth “thirty cents or so.” The checks when found by the police had been filled in to show as payees certain individuals who are related to defendant by marriage.

I.

Defendant’s Points Relied On numbers 1, 2 and 5 all object to Instruction No. 4. Construing those points liberally in favor of defendant, they present the following issues: a) The information charged a theft on January 15, 1975, but Instruction No. 4 submitted to the jury the question of whether defendant committed theft on June 15, 1975. Based on this discrepancy defendant argues that the verdict was beyond the information and the evidence; b) Defendant argues that the evidence was insufficient to prove any theft by defendant, regardless of date.

With respect to the discrepancy of dates, it must be observed that all the evidence related to events on January 15,1975, and during the two or three days immediately thereafter. There was no reference during the trial of any kind to June 15. The substitution of June 15 for January 15 in the Instruction was quite obviously a clerical mistake which could not possibly have misled the jury. The error in date here has no more significance than the error in dates in State v. Shipley, 232 S.W.2d 515 (Mo.1950), which was held to be nonprejudicial.

A similar error of dates was held nonprejudicial in Woods v. State, 139 Tex.Cr.R. 631, 141 S.W.2d 318 (1940), where the information charged a violation on June 5,1939, but the instruction referred to acts done on June 5, 1909. The court held:

“This mistaken date is so palpably a typographical error we feel sure it could have had no influence upon this jury, who certainly knew from the evidence that this man was being tried for an offense said to have been committed on June 5, 1939.”

So also in Howe v. Commonwealth, 462 S.W.2d 935, 938 (Ky.App.1971), a similar discrepancy in dates was held immaterial. The indictment stated January 22 as the date of events, while the instruction referred to February 22. The court held this discrepancy to be nonprejudicial:

“Dates were not in issue and the testimony referred to the correct date of the crime. We are of the opinion that the error in the date did not affect the substantial rights of the accused and that he was not prejudiced by this inadvertent mistake.”

[594]*594Turning to the alleged insufficiency of the evidence, that question also must be ruled against defendant. His possession of the recently stolen checks, when stopped by the police on January 17, was a sufficient premise from which the jury could infer that he was the thief. State v. Sallee, 436 S.W.2d 246, 250 (Mo.1969); State v. Nichols, 130 S.W.2d 435, 486 (Mo.1939). Moreover, his possession of that portion of the loot permits the inference that he was the thief who stole it all. State v. Burrage, 418 S.W.2d 101, 106 (Mo.1967); State v. Weaver, 56 S.W.2d 25, 26 (Mo.1932); State v. Beatty, 90 Mo. 143, 2 S.W. 215, 216 (1886).

Defendant calls attention to the fact that two other individuals were in the automobile with him at the time defendant was stopped on the street by the police. He argues that defendant was simply in joint possession with those other occupants and that in the case of joint possession of stolen property, no inference can be drawn that any particular one of the possessors was the thief in the absence of additional facts and circumstances connecting the defendant with the theft. State v. Pruett, 522 S.W.2d 823 (Mo.App.1975). Such additional facts and circumstances do exist here by reason of the fact that defendant was the driver of the automobile (as contrasted to being merely a passenger), he was present at the scene of the theft during the very short interval during which the theft occurred from the Ozias home, and the stolen checks were filled in with the names of payees who were defendant’s relatives. The evidence in this case was sufficient to warrant submission to the jury.

II.

Defendant’s Point 3 alleges: “The Court erred in permitting the State to comment upon Defendant’s refusal to testify, in as much as the Prosecuting Attorney commented during his closing argument that Defendant had failed to offer any evidence to contradict the State’s evidence, when in fact, the Defendant had offered such evidence; the Prosecuting Attorney thereby clearly refering [sic] to.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Mick
674 S.W.2d 554 (Missouri Court of Appeals, 1984)
State v. Greenwood
643 S.W.2d 837 (Missouri Court of Appeals, 1982)
State v. Silinzy
621 S.W.2d 114 (Missouri Court of Appeals, 1981)
State v. Hill
614 S.W.2d 744 (Missouri Court of Appeals, 1981)
State v. Harris
602 S.W.2d 840 (Missouri Court of Appeals, 1980)
Brame v. State
597 S.W.2d 665 (Missouri Court of Appeals, 1980)
State v. McGraw
571 S.W.2d 802 (Missouri Court of Appeals, 1978)
State v. McIntosh
559 S.W.2d 606 (Missouri Court of Appeals, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
542 S.W.2d 591, 1976 Mo. App. LEXIS 2640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brame-moctapp-1976.