text:
    STATE of Missouri, Respondent, v. Thomas BARTON, Appellant.
    No. 50176.
    Supreme Court of Missouri, Division No. 2.
    June 8, 1964.

      No attorney for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, George W. Cady, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   BARRETT, Commissioner.

In April 1961 Thomas Barton entered a plea of guilty in the Circuit Court of Dunklin County to a charge of burglary and larceny and was sentenced to two years’' imprisonment for the burglary and two years’ imprisonment for the larceny, the sentences to run concurrently. “Claiming a right to be released” from the burglary sentence only Barton filed a motion to vacate that part of the judgment and sentence, the court denied the motion without a hearing and he has appealed. At the appellant’s request the circuit court has approved and there has been lodged in this court a transcript consisting of the preliminary proceedings in magistrate court, the information, sentence, judgment, the motion to vacate and most importantly a transcription of the proceedings upon his plea of guilty and sentence on April 10, 1961. There are five paragraphs in his motion to vacate but they are all directed to two claims, one, that in violation of his constitutional rights he was “allowed * * to proceed in this case without counsel” and even though he had said he did not desire or need counsel “the court * * * chose to take * * * unfair advantage of this circumstance and to award a felony sentence and judgment in a misdemeanor case,” and, second, that the burglary of a schoolhouse, with which he was charged was a misdemeanor, not a felony, and therefore the court erroneously and improperly sentenced him to two years’ imprisonment for that offense.

As to the first claim, failure of the court to appoint counsel, the transcription of the proceedings upon his plea of guilty reveals that the court plainly and fully explained to Barton the charge, told him that he was entitled to a trial by a jury and, despite Barton’s interruption “I’m guilty, Your Honor,” the court proceeded to tell him that “(y)ou are also entitled to have the services of an attorney to advise with you and represent you before you take any action in this case, and you arc not required to take any action today. The services of an attorney are often very helpful to persons charged with a crime of this kind. If you have no attorney and are unable to employ one, the court will appoint an attorney for you if you want one.” Repeatedly the appellant declined the offer of an attorney or a jury trial and, despite some illiteracy, the appellant fully understood the nature of the charge and the proceedings and advisedly waived the right to counsel. Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Annotation 9 L.Ed.2d 1260, 1262, “It may he implied from the Supreme Court’s opinions that an accused in a state prosecution may waive his right under the Fourteenth Amendment to be represented by counsel, provided that such waiver is intelligently and understandingly made.” The proceedings followed by the court are almost identical with those in State v. McDonald, Mo., 343 S.W.2d 68, where all the relevant state and federal cases are collected, and no unfair advantage was taken of the appellant and his constitutional rights, including his right to counsel, were not infringed.

All in one count (V.A.M.S. § 560.110) Barton was charged with feloniously breaking into and entering “the Arbyrd School” and stealing $245.50 in cash. In addition to the regular second degree burglary statute, “Every person who shall be convicted of breaking and entering any building * * * in which there shall be at the time any * * * goods, wares, merchandise or other valuable thing kept or deposited with the intent to steal * * * shall * * * be adjudged guilty of burglary in the second degree,” V.A.M.S. § 560.070, there is a misdemeanor statute, “Every person who shall wrongfully break into or enter any schoolhouse * * * shall be adjudged guilty of a misdemeanor,” V.A.M.S. § 560.090, and shall be punished by a jail sentence, or a fine. Since upon its face the information charged that Barton burglarized “the Arbyrd School,” it is his contention that he was guilty of a misdemeanor only, that the felony sentence is void and infringes his constitutional rights. It is only in this regard that Barton claims that he was unfairly deprived of the effective aid of counsel; that counsel would have known that he was guilty of a misdemeanor only rather than a felony and accordingly would have protected his rights. The difficulty with the appellant’s contention is that he was not charged with the mere misdemeanor of “wrongfully” breaking into a schoolhouse, he was charged with the felony of breaking into a “building” in which “other valuable thing(s) (were) kept * * * with intent to steal.” State v. Stewart, 329 Mo. 265, 44 S.W.2d 100. A “building” is a structure temporarily or permanently occupied or used for the storage of personal property for safekeeping. A “schoolhouse” fits this definition and it fits the designation in the felony burglary statute of “any other building.” Annotation 78 A.L.R.2d 778 “What is a ‘building’ or ‘house’ within burglary statutes.”

Thus upon the face of the motion and “files and records of the case” before the court a hearing was not demanded, (Sup.Ct. Rule 27.26) and the appellant was entitled to no relief and for the reasons indicated the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    Nason Leroy GODDARD by Next Friend Dorothy JoAnn Goddard, Appellant, v. ST. JOSEPH LIGHT AND POWER COMPANY, a Corporation, and City of St. Joseph, Missouri, a Municipal Corporation, Respondents.
    No. 49966.
    Supreme Court of Missouri, Division No. 1.
    June 8, 1964.
    Randolph & Randolph, by Robert B. Randolph, St. Joseph, for appellant.
    James O. Turner, Edward P. Speiser, Richard W. Mason, Jr., St. Joseph, for respondent, City of St. Joseph, Mo.
    Sprague, Wilcox & Houts, St. Joseph, for respondent St. Joseph Light & Power Co.
   WELBORN, Commissioner.

This is an action for $50,000 damages, brought on behalf of Nason Leroy Goddard, a minor, by his mother as next friend, against the St. Joseph Light and Power Company and the City of St. Joseph, for personal injuries alleged to have been sustained by Nason as the result of negligence of the defendants in the construction and maintenance of an electrical distribution system and an electrical street lighting system in St. Joseph. Upon a trial in the Buchanan County Circuit Court, the jury could not agree. Thereafter, the trial court sustained the defendants’ motions for judgment in accordance with their motions for directed verdict. Plaintiff has appealed from the judgment so entered.

The sole question presented on this appeal is whether or not plaintiff made a submissible case in the trial court. In determining this question, we view the evidence in the light most favorable to plaintiff, giving the plaintiff the benefit of all favorable inferences arising therefrom and disregarding defendants’ evidence, except insofar as it might assist the plaintiff. Erbes v. Union Electric Company, Mo.Sup., 353 S.W.2d 659, 663(1).

This litigation arose out of an occurrence on the afternoon of Sunday, February 12, 1961, in the 300 block of Smith Street, between Moose and Elk Streets, in the City of St. Joseph. The defendant St. Joseph Light and Power Company (hereinafter referred to as Power Company) supplied electricity to users in St. Joseph. It maintained poles on the east side of Smith Street, which ran generally north and south. One pole, near an alley, was some 33.2 feet in height. Atop the pole were two wooden cross arms, running generally in an east and west direction. The upper arm carried on insulators near its west end at approximately the height of the pole, a 7200 volt primary line of the Power Company. The second cross arm was approximately two feet below the upper. Attached to insulators near the east end of this arm was a line of the St. Joseph city street lighting system. There was also a transformer on the pole, connected to the 7200 volt line. Below the transformer and some 5.8 feet below the lower cross arm were secondary wires of the Power Company, carrying 120 and 240 volts.

The next Power Company pole to the north on Smith Street was approximately 108 feet from the pole near the alley. It was 29.2 feet high, and had a single cross arm, to which the 7200 volt line, running approximately parallel with Smith Street, was attached at a level nearly equal to the top of the pole.

The city street light line ran northwesterly from the pole near the alley, across Smith Street at an angle, to a city pole on the west side of the street, a distance of approximately 150 feet. There it was attached to the pole at a height of approximately 24.4 feet above the ground.

To permit the street light wire to cross Smith Street, it passed beneath the'7200 volt line of the Power Company at a point approximately 18 feet north of the pole at the alley. A witness for the plaintiff estimated the vertical distance between the 7200 volt line and the street light line at the point of intersection as about a foot and a half or two feet.

The date of the erection of the 7200 volt line does not appear. However, the wire had been insulated, but on the day in question, the insulation was rotted off and there was very little insulation left on it. There was evidence that, in the five preceding years, the 7200 volt line had broken on three or four occasions at locations 100 feet on either side of the pole at the alley.

The city street light line had been erected pursuant to a 1955 agreement between the city and the Power Company, under which the city was given permission generally to use the Power Company poles in its street lighting system. The street light wire was an uninsulated aluminum wire. At the time here involved, the 7200 volt line was energized, but the street light line was not, as the accident occurred during daylight hours.

A house, numbered 306 Smith Street, was on the west side of that street, between Elk and Moose Streets. In front of the house and some 18 feet from the traveled portion of Smith Street, which was 22 feet wide, was a large maple tree, some 60 feet in height. On the day in question, Ernest Plelton, the owner of the house, decided to trim some limbs from the maple tree. His trimming technique involved partially cutting limbs on the tree and then pulling them off the tree by means of a wire cable attached at one end to the limb and at the other to a tractor which Helton operated on Smith Street. Helton was assisted by Bennie Weiser, who cut the limbs before Helton pulled them with the tractor, and by his son.

Nason Leroy Goddard, 12 years of age at the time, lived on Elk Street. Attracted by the tree trimming activity, he and a friend, David Fraser, sat down on the east side of Smith Street, on a grassy area between a ditch along the street and a sidewalk, and some 6 to 8 feet north of the Power Company pole near the alley.

Helton attached the cable to a limb in the maple tree. The limb was some 8 inches in diameter at its butt, 34 to 35 feet above the ground, and was some 12 feet in length and extended in a southeasterly direction from the tree. Witnesses described it as the biggest limb of the tree which extended over Smith Street. Helton stated that it did not extend over the street light wire, which was approximately 36 feet east of the base of the tree. He said: “Standing on the ground and looking up, (the limb) looked like it was five or six feet from the City light wire.”

When Helton pulled on the limb with the tractor, it broke loose from the tree. The limb struck the street light wire which then came in contact with the 7200 volt Power Company line. An arc occurred and both lines were severed. The 7200 volt line fell to the ground and struck Nason, sitting on the ground, causing serious burns. This occurred within five minutes after Nason had sat down.

The limb fell in Smith Street and was “within six to eight feet of reaching the other side.” The broken street light wire lay beneath the limb on the ground. No one witnessed the movement of the street light wire upon its being struck by the limb. Helton testified, without objection, that he had “no doubt” that the street light wire and the 7200 volt line came in contact and shorted out. A plaintiff’s witness who was an electrician demonstrated to the jury the result of contact between wires in a situation such as the defendants’ lines. The contact caused the high voltage line to burn in two immediately. According to this witness, proper insulation of either or both the 7200 volt line and the street light wire would have eliminated the arcing.

The case was tried on a petition which named the Power Company, the city and Helton as defendants. However, plaintiff dismissed as to Helton at the close of the plaintiff’s case. As to the Power Company, the petition charged that, in the exercise of the highest degree of care, it should have known that the insulation was worn off its 7200 volt line so that it was incapable of preventing conducting of the high voltage electricity in that line to the street light wire; that the Power Company should have known that by giving the city permission to construct its street light line diagonally across Smith Street and attach the wire to its pole so that it came in close proximity to the 7200 volt line, high voltage electricity would escape from the uninsulated 7200 volt line by its coming in contact with the street light line and cause the power line to be shorted or grounded. The Power Company was charged with negligence in failing to post warning signs, in failing to erect guards to prevent contact between the 7200 volt line and the street light wire, and in failing to isolate the 7200 volt line.

The negligence charged against the city was in construction and maintenance of its street light wire in close proximity to the uninsulated 7200 volt line of the Power Company and failure to insulate the street light line. Both the Power Company and the city were charged with negligence in that they knew or should have known that the tree on the west side of Smith Street had grown to such extent that its limbs were likely to come in contact with the street light wire, pushing it into the 7200 volt line, causing a short, and in failing to supply expert tree trimming necessary to remove the tree limbs from the wire. .

“ ‘Suppliers of electricity must exercise the highest degree of care to keep their wires in such condition as to prevent injury to others who lawfully may be in close proximity to those wires. Smith v. Southwest Missouri R. Co., 333 Mo. 314, 320(1), 62 S.W.2d 761, 763 (2-4); Thornton v. Union Electric Light & Power Co., 230 Mo.App. 637, 644, 72 S.W.2d 161, 164(4). Of course, as defendant points out, this duty did not make instant defendant an insurer of the safety of all persons. But defendant was required to use the highest degree of care to prevent injury which it could reasonably anticipate. It was not necessary, however, that defendant should have anticipated the exact injury which did occur or the exact manner in which the injury occurred. It was sufficient that a jury reasonably could find that defendant reasonably should have anticipated that some injury was likely to occur to one lawfully at or near the tree in question by reason of the presence of the line in its particular location.’ Lebow v. Missouri Public Service Co., Mo.Sup., 270 S.W. 2d 713, 715.
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“We have recently said that 'a duty to insulate wires has often been stated by this Court. 18 Am.Jur. 485, Sec. 93; 29 C.J.S. Electricity § 44, p. 589; Geismann v. Missouri-Edison Electric Co., 173 Mo. 654, 73 S.W. 654; Williams v. Springfield Gas & Electric Co., 274 Mo. 1, 202 S.W. 1; Godfrey v. Kansas City Light & Power Co., 299 Mo. 472, 253 S.W. 233. If it is true, as indicated by defendant’s evidence, that it is impossible to fully insulate wires carrying such high voltage as these, then certainly the exercise of the highest degree of care requires that such wires be so isolated that they will not be likely to cause injury to persons in places where they may lawfully be and may be reasonably expected.’ Gladden v. Missouri Public Service Co., Mo.Sup., 277 S.W.2d 510, 515.” Erbes v. Union Electric Company, Mo.Sup., 353 S.W.2d, 1. c. 664.

Tested by these rules, we are of the opinion that the evidence favorable to plaintiff in this case would have afforded a basis, if believed by the jury, for a finding of negligence on the part of the defendants. The Power Company permitted the insulation on its 7200 volt line to deteriorate and become ineffective. The previous difficulties with the line in the vicinity were sufficient to apprise the Power Company of the condition of its line. The jury could find that, in the exercise of the highest degree of care (and the city makes no claim here that any other degree of care was applicable to its operation of its street lighting system), the city should have known that its uninsulated line was in close proximity to the inadequately insulated high voltage line of the Power Company. Whether or not it was negligence on the part of the defendants to maintain their lines in such condition in the proximity which existed in this case is, in our opinion, properly a matter for the jury’s determination.

Cases which involve the responsibility of an electricity supplier for the erection of its own uninsulated line are not controlling in a situation such as this. The presence of multiple lines, particularly in an inhabited urban area, presents different problems where the possibility of their contact might produce a dangerous situation. 18 Am.Jur., Electricity, Sec. 98, p. 493; 29 C.J.S. Electricity § 46, p. 593. Consequently, we do not feel obligated to bring this case within one of the four broad factual classifications expressed by the Springfield Court of Appeals in Foote v. Scott-New Madrid-Mississippi Electric Cooperative, 359 S.W.2d 40, relied upon by respondents, as encompassing the situations generally involving liability of an electricity supplier to a person who suffers injuries as a result of contact with uninsulated, energized wires.

Here, the question is not whether the Power Company, by maintaining a remote, uninsulated wire, was guilty of negligence or whether the city was responsible for a similar situation. The question here is whether or not the combination of their lines produced a situation of potential danger to the innocent user of the public street below. In our opinion, the possibility of contact between the lines, crossing in midair at a distance of from 18 to 24 inches, was not so remote that the defendants could not have been expected to have anticipated such a possibility. The presence of the tree in front of 306 Smith Street towering to a height twice that of the power lines should have been sufficient to have brought the potential danger to the attention of the defendants.

Respondents assert that the case of Majors v. Ozark Power & Water Co., 205 Mo. App. 337, 222 S.W. 501, involved a factual situation similar to that here presented. In that case, a 50-foot tree was felled so that it struck the defendant’s line, some 40 or 50 feet away, causing it to break. One of the workmen who had felled the tree came in contact with the broken wire. Failure to insulate the wire was charged as negligence. A directed verdict for defendant was upheld. Apart from the fact that both that case and the present case involved an uninsulated wire, SO to 60 feet distant from a SO to 60-ft. high tree, we do not find the legal situations presented in the two cases comparable. In Majors, the potential danger arose when the uninsulated line was, through no fault of the power company, thrown to the ground. In this case, the potential danger arose from the presence of the uninsulated lines where the city and Power Company had installed them and intended them to be. So long as the line in Majors was standing in its proper place, the power company had fulfilled its duty to persons in the vicinity. When the line, through no fault of the power company, was removed from its proper location, a new duty did not arise until the company had had a reasonable opportunity to remedy the situation. In this case, the defendants had not, with respect to their lines, fulfilled their duty to persons in the vicinity if the presence of the lines in their intended location was a potentially dangerous condition. Whether or not it was, a jury should determine.

The respondents argue strongly that they should not be required to have foreseen that the unconventional tree trimming methods employed by Helton would produce the situation here presented. However, respondents’ argument in this regard ignores the fact that to establish their negligence, it is not required that they “have anticipated the exact injury which did occur or the exact manner in which the injury occurred. It was sufficient that a jury reasonably could find that defendant reasonably should have anticipated that some injury was likely to occur to one lawfully * * * near” the intersecting lines. Lebow v. Missouri Public Service Co., supra.

If, as we conclude, it was for the jury to determine whether or not the maintenance of the lines in the manner here involved was negligence, it was likewise a matter for the jury to determine whether or not such negligence caused or contributed to the injury of Nason. We need not characterize Helton’s activity in trimming the tree in the unusual manner which he employed. Obviously, he could be found negligent in so doing. However, the jury certainly could find that Helton’s negligence concurred with that of the defendants, if they found the defendants negligent. The evidence does not require the conclusion, as a matter of law, that Helton’s negligence broke the chain of causation insofar as respondents are concerned. Hickman v. Union Electric Light & Power Co., Mo.Sup., 226 S.W. 570, 574(3); Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820, 824(3-5).

The judgment is reversed and the cause remanded for a new trial.

COIL and HOUSER, CC., concur.

PER CURIAM:

The foregoing opinion by WELBORN, C, is adopted as the opinion of the Court.

All of the Judges concur except HENLEY, J., not sitting.


author: PRITCHARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Lee Anderson CODY, Appellant.
    No. 50100.
    Supreme Court of Missouri, Division No. 2.
    June 8, 1964.
    Charles L. Edson, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jeremiah D. Finnegan, Asst. Atty. Gen., Jefferson City, for respondent.
   PRITCHARD, Commissioner.

Defendant, Lee Anderson Cody, who was also known by the nickname “Tooky,” was convicted by a jury of the crime of assault with intent to do great bodily harm without malice upon one Erline Reed. It having been alleged in the indictment and stipulated by the parties that defendant had a previous felony conviction, the court assessed his punishment at four years in the Missouri State Penitentiary under the Habitual Criminal Act, Section 556.280 RSMo 1959, V.A. M.S. After defendant’s motion for new trial was overruled, allocution was granted, judgment of' conviction was entered and he was sentenced to four years’ imprisonment in the Department of Corrections. From the time of his arraignment through this appeal defendant has been represented by able and diligent court-appointed counsel, and defendant was allowed to appeal to this court as a poor person.

The events which preceded the assault in question by defendant upon Erline Reed involved several visits at intervals by defendant at the home of Bessie Reed at 3864 Kennerly in the City of St. Louis on Friday, October 19, 1962. During the last visit, which was about seven o’clock in the evening, they had a couple of drinks during an hour, then Erline gave defendant some money to go and get some more to drink. Defendant left and was gone about forty-five minutes, and when he came back he and Bessie got into an argument about the whiskey after Bessie had asked him to give the drink to her and Erline had called from the kitchen of the apartment for defendant not to open the bottle. Defendant would not give the bottle to Bessie, so she tried to take it away from him. Defendant threw the bottle of whiskey on the couch and knocked Bessie down with a blow on the chin, then got on top of her and held her down. Bessie’s two sisters, Erline and Lily Reed and the “common-law husband” of Erline, Henry Macon, came in, pulled defendant off of Bessie, and Erline asked defendant to leave. When defendant got outside the door he pushed Erline down in the mud and said he was going to get a gun and kill all of them.

Erline Reed testified that after defendant left her home upon her orders, he later returned walking rapidly toward her and holding what looked like a stick under his right arm. Defendant started as though he intended to come into the house, Erline told him not to come in, and defendant then struck her across her left ear, face and head with the object he was carrying. Er-line fell, but did not hear a shot. She was taken to the hospital where her left ear was sewed up and where she remained until Sunday. On October 28, 1962, she saw defendant at the police station where he was questioned in her presence. At that time defendant stated that he had struck her with the gun.

Queen Ester Reed, Erline’s sister, testified that she heard defendant say he was going to get a gun and come back and shoot all of them, and that she saw defendant approach and hit Erline with a gun. She heard a sound from the gun and saw a spark. The barrel from the gun (State’s Exhibit 2) fell to the sidewalk. At the time Queen Ester saw nothing in the hands of any other persons present.

Patrolman Thomas Mooney testified that he assisted in the defendant’s arrest at 3642 Cottage on October 28, 1962, at which time defendant said his name was Lee Williams. Later defendant admitted his name was Cody, and that he had hidden the stock of the gun (State’s Exhibit 1) on top of a roof across the street, at 2504 North Spring. Defendant took the officers to where the gun stock was and they found it with the trigger mechanism of the gun attached. After being booked defendant told the officers that he had hit Erline Reed with the gun, and identified the two pieces thereof as the one he had used. Defendant said he had obtained the gun at 3705 Cote Brilliante. The testimony of patrolman William Donough was substantially the same as that of Mooney.

Detective Milton Haupt picked up the barrel of the rifle, State’s Exhibit 2, from the ground up the street about six houses from the scene of the assault. Defendant told the officers that when he struck the girl with the rifle it broke in half and he ran with the stock portion thereof, the barrel being left at the scene.

Defendant, in testifying, stated that on the evening in question Bessie did try to take the liquor from him and that he resisted. She pushed him against the wall and kept coming. He put the bottle aside on the couch and held her at which time she started kicking over the chairs and everything. Erline and Henry Reed (Macon) came in, and Erline grabbed him around the neck and was biting his face, so he pushed the crowd back and Henry opened the door and “snatched” him to the outside. Erline then had a knife and a hammer and was trying to come up behind defendant. She told defendant she was going to kill him, and he told her he was going to “kill her back.” There were four persons, according to defendant, outside the building: Henry Macon, Erline Reed, Bessie Reed and Cora McEntire. Everybody was coming toward him so he jumped back and went around the corner and said, “I’ll go get me something, too, to fight for me.” Defendant then went over to his cousin’s house at 3600 Cottage and got the gun which was not loaded and which he did not load, although he testified that he asked a person at that place if he had some bullets. Defendant then came back and saw the four by his car which he had previously parked in front of Erline’s house. He crossed over the street to keep them from seeing him and sat down on some steps right across the street from the house. The four apparently saw someone coming down the street who resembled defendant and they started calling his name, and calling a whole lot of names, so defendant stepped out into the street. Erline said, “Come on. That gun won’t shoot but one time.” She had a knife in her right hand and a hammer in her left. He knew that Erline had a violent temper and that she generally carried a knife. When defendant got a couple of feet onto the curb he saw Erline coming at him with a hammer and the knife which had about a four inch blade. He then brought one hand up with the gun, which went between her arms and “smacked” her and the gun broke. Defendant backed up; Cora Reed picked up a piece of iron, ran at him and threw it at him; Henry Macon bent down to see how Erline was, picked up the knife and ran up to the lamppost where defendant had stopped, and told defendant he was going to kill him; defendant told him, “come on” and Henry started swinging the knife at him almost up to the corner where they blocked the cars; and by this time the police were coming around the corner. Defendant testified further that he knew the police were after him for a nine-day period, and that he did give the police the wrong name at the time of his arrest. He testified that he had a room for himself at 3705 Cote Brilliante.

On rebuttal, patrolman William Donough testified that during his interrogation of defendant he did not at any time state that he had obtained the gun at 3600 Cottage but that the address given by defendant as to where he got the gun was 3705 Cote Brilliante; he did not tell him that Erline Reed came at him or attacked him on October 19 with a knife or a claw hammer in her hand; or that anyone else had tried to attack or in any way injure him. Patrolman Mooney substantiated the foregoing in rebuttal testimony.

The above recital of the facts, which the jury could have reasonably found, establishes that defendant’s first point that the state did not make a submissible case because the evidence of intent was lacking is without merit. There was ample evidence that defendant, just after the first altercation, formed the requisite intent to do bodily harm to his victim and carried that intent through the act of the assault. He left, went to his room and procured his rifle and returned with it to Erline’s house where he proceeded to strike her with it, and did inflict an injury upon her. In State v. Holmes, Mo., 364 S.W.2d 537, cited by defendant, the facts showed defendant twice turned his automobile into that of the prosecuting witness, Solomon, forcing it into a ditch. Solomon then got out of his automobile, walked over to defendant’s car to speak to him and defendant struck Solomon with his fist knocking him down to the wet ditch where he proceeded to kick and stomp the head, arms and body of Solomon who offered no resistance. The court did say, loc. cit. 540, “Since the crime charged is assault ‘with intent to do great bodily harm,’ the intent to do great bodily harm must be present at the time of the act of assault,” but the court went on to hold that the state made a submissible case upon the facts showing that the defendant twice deliberately caused his automobile to strike that of Solomon, intending to do great bodily harm, such intention being supported by his continuation of the assault by the brutal beating and kicking of Solomon. Defendant also cites State v. Chevlin, Mo., 284 S.W.2d 563, 566, that “The intent, by express words, is made an essential element of the offense and must be proved.” That is the law. The court, however, in the Chevlin case went on to say, “It is the unusual situation when there is direct evidence of the intent of a person charged with a crime such as here. Intent may and generally must be established by circumstantial evidence, for as a rule it is not susceptible of direct proof.” We hold that the evidence that defendant, in leaving Erline’s home with the statement, “I’ll go get me something, too, to fight for me,” then going to his room, getting the rifle, and later approaching Erline, even if at her invitation, where he struck her on the left side of the head inflicting an injury sufficient to hospitalize her, was sufficient for the jury to find that defendant formed, continued to have, and had present at the time of the assault, the requisite intent to do great bodily harm. Sections 559.180, 559.-190 RSMo 1959, V.A.M.S. The evidence, although contradictory in some respects, was for the jury, and the same was not as contended by defendant “inherently incredible, self-destructive, or opposed to known physical facts” which if so would authorize this court to reverse defendant’s conviction in accordance with his cited case of State v. Gregory, 339 Mo. 133, 96 S.W.2d 47. Defendant’s Point I is ruled against him.

Prior to the trial defendant moved to produce the conviction records of the witnesses endorsed on the indictment. These were produced upon subpoena directed to the Metropolitan St. Louis Police Department. Defendant also at this time orally requested the warrant office statements (meaning a question and answer statement given by witnesses in the circuit attorney’s office where warrants for arrest are issued) of the prosecution witnesses for the purpose of impeachment on cross-examination, and he renewed the oral request during the trial upon the cross-examination of witness Bessie Reed. At the conclusion of the trial and after the verdict was rendered, defendant again orally moved for the production of the warrant office statements of the prosecution witnesses, and in support of the oral motion called to the witness stand Mr. Daniel T. Tillman, a lawyer currently employed in the St. Louis Circuit Attorney’s office. Mr. Tillman testified that the procedure in the preparation of warrant office statements was this: After an arrest of a subject and usually within twenty hours the police officers present the police report and witnesses to the warrant office of the circuit attorney. At that time the assistant will read over the police report, talk with the witnesses, and determine if there is sufficient evidence to warrant issuing an information in the case. If the assistant feels there is probable cause and sufficient information, the office will issue a warrant and at that time witnesses will give a question and answer statement to the assistant circuit attorney in the Circuit Attorney’s office. The case may then be sent to the Circuit Court by information, or it may be referred to the Grand Jury for indictment. The instant warrant office statements were taken by Mr. Robert Mc-Nicholas, an assistant circuit attorney, with Mrs. Kay Marshall, a stenographer, in question and answer form, of Erline Reed, Bessie Reed, Patrolman William Donough, Queen Ester Reed and Cora McEntire, consisting of nine pages. Upon request made to Mr. Tillman by Mr. Edson, defendant’s counsel, to produce these statements he declined, but he did state he had them in court, and he did give them to the judge after which the court stated into the record that he had read them, and that he concluded that there was no reason for ordering the circuit attorney, or the witness Mr. Tillman, to turn the document •over to counsel for defendant at that time. The court ordered the document be marked “Court’s Exhibit OHJ - Alpha,” enclosed in a sealed envelope, and forwarded to this court, and we now have the document before us. Counsel for defendant has never seen this document and by Point II he assigns as error the failure of the trial court to supply him therewith for his stated purpose of impeachment on cross-examination of the \yitnesses testifying. The statements were not used during the trial by any witness for the purpose of refreshing recollections. At the time during the trial when counsel requested the statements, after the examination in chief of witness Bessie Reed he did not state any grounds therefor.

As noted, each of defendant’s requests for the warrant office statements •of the testifying witnesses was oral. If defendant is contending that he is entitled to proceed under Supreme Court Rule 58.01, V.A.M.R. (for the production of documents in civil cases) that procedure would avail him nothing because that rule by its reference to Rule 57.01(b) excludes an inquiry as to contents or substance of statements, written or oral, on behalf of another party. If defendant is contending that he is entitled to proceed under Section 510.030 RSMo 1959, V.A.M.S., for the production of the documents, he has failed to bring himself within that statute by compliance with its terms requiring a showing of good cause therefor. See State v. Redding, Mo., 357 S.W.2d 103, 109 [17]; State v. Kelton, Mo., 299 S.W.2d 493, 497 [8,9]. Defendant did not use the procedure which is prescribed by Supreme Court Rule 25.19, V.A.M.R., for the issuance of a subpoena duces tecum for the desired documents. The procedure under the latter rule would give to the state the opportunity to move to quash or modify such subpoena upon the ground that “compliance would be illegal, unreasonable or oppressive,” and which procedure would seem to be the correct one in the situation such as here presented. We cannot see any practical reason, legal or strategic, why the state should not have produced the desired statements and thus have eliminated the controversy thereover. See State v. Crayton, Mo., 354 S.W.2d 834, 838, where it was said, “After all, the ultimate purpose of a criminal trial is to procure substantial justice and not merely to convict the defendant.” However, we cannot convict the trial court of error for his failure to order the production of the documents in the absence of appropriate procedure therefor. See annotation, “Want of Proper Procedure for Production” (of contradictory statements), 156 A.L.R. 353. Point II is ruled against defendant.

By Point III, defendant contends that there was no evidence to warrant the court giving Instruction 5-A, the “flight instruction.” There is no merit in this contention, and it is ruled against the defendant. The evidence shows that defendant fled from the scene; that he did not return to his place of residence; that he was in concealment from the place at a place other than his regular abode, knowing for nine days that the police would be looking for him by reason of the offense; and he gave a false name at the time of his apprehension. These facts justify the giving of Instruction 5-A. See State v. Cochran, Mo., 366 S.W.2d 360, 362 [3, 4], and cases and authority there cited and quoted.

We have examined the matters specified by our Rules 28.02 and 28.08, V.A.M.R., and we find no error. The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Robert Frederick REGAZZI, Appellant.
    No. 50260.
    Supreme Court of Missouri, Division No. 2.
    June 8, 1964.

      Charles M. Shaw; Clayton, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Ronald R. McKenzie, Special Asst. Atty. Gen., Hannibal, for respondent.
   PRITCHARD, Commissioner.

Defendant with two accomplices was charged by information with having committed the felonies of burglary of a certain store or building located at 8200 Airport Road, Berkeley, Missouri, and of stealing therefrom cigarettes, money and narcotic drugs of an approximate value of $491.80. Severance was granted and defendant being present and represented by counsel was tried by a jury which found him guilty as charged and assessed his punishment at two years in the penitentiary for each offense. After his motion for new trial was overruled, allocution was granted, judgment was entered and defendant was sentenced to a total of four years in the Department of Corrections. Defendant does not challenge the submissibility of the state’s case.

The evidence which is necessary to a determination of the points raised by defendant in his appeal is as follows: Arthur P. McGlasson is a pharmacist who was the proprietor of a pharmacy at 8200 Airport Road, Berkeley, Missouri (at the southwest corner of Airport Road and Fay Avenue). On the evening of July 10, 1962, he closed his place of business, as was his custom, at ten o’clock, and remained in the building doing some book work until beyond midnight, it could have been as late as one o’clock, which would be the morning of July 11, as he testified. Upon leaving the premises he checked all four doors thereto and locked them. Shortly before five o’clock of that morning Mr. McGlasson returned to the pharmacy after being called by the Berkeley police. He found the entire prescription room at the back of the store in disarray; the safe was lying on its back with the door torn off; prescription files were all over the place; the door to the garage in the basement had been pulled halfway up; and a refrigerator in which various biologicals, vaccines and suppositories had been kept was completey cleaned out. A door leading from a doctor’s and a dentist’s offices (in the rear of the building) to the prescription department of the pharmacy had been jimmied — the bolt was broken and there were tool marks on the wooden portion of the door. A window at the very back of the building in the doctor’s office was open. There was another door, which was unlocked, leading to the basement. At the east side of the building, along Fay Avenue, there was a parking lot, and a driveway which was about eight or nine feet wide and which went down to the basement door at about a forty-five degree angle, was also located on the east side of the building. This building was about sixty feet long north and south. At the time of his arrival at the pharmacy building after being called by the police Mr. McGlasson looked into an automobile which was parked by some high hedge bushes in front of a house on Fay Avenue just to the rear of his store. He recognized a lot of his drugs piled on the seat and on the floor of the rear of the automobile, and identified them by the cost code marks which he had placed on the packages. These packages were marked as State’s Exhibits 1 through 8 and were admitted into evidence at the trial. In the automobile were also ten cartons of Pall Mall and Chesterfield cigarettes which were missing from the store building.

Police officer David L. Carter of the City of Berkeley, was on July 11, 1962, at approximately 4:59 a. m., patrolling in a police car on Airport Road in the vicinity of Fay Avenue. He stopped at the stop sign for Fay Avenue on Airport Road upon which he was proceeding east. He then looked to his right toward the parking lot adjacent to McGlasson’s pharmacy and saw two white men walking out of the driveway which led from the basement of the building. He was about sixty-five feet away at the time. The driveway was about forty to forty-five feet long, and the two men were about half the distance between the building and Fay Avenue when he saw them. It was dark at the time, but the corner was well lighted and there was a floodlight on the building which partially lighted the parking lot. Officer Carter immediately turned right and followed the men as they were walking south on Fay Avenue to a car which was placed one hundred to one hundred and ten feet south of the building. One of the men was carrying a plastic type laundry basket, which looked something like a bushel basket and which had something in it. Carter stopped and got out of the police car as the men were getting into the rear of the 19S3 Chevrolet which Carter observed had no license plates on it. He then observed that there was someone seated in the driver’s seat of the car, whereupon he ordered the three men out of the car (Pope, Perrin and the defendant), placed them under arrest and called for assistance. Carter identified defendant as one of the men whom he saw walking down Fay Avenue from the driveway. After other officers arrived, Carter telephoned Mr. McGlasson, and when he arrived he went with him and Major Bray to the building where he saw a window in the rear thereof which was partially open — six to eight inches from the bottom. The window showed no signs of being forced. The three then went into the building through the open basement door, then to the upstairs where they found that door unlocked. Carter saw the safe lying down with the door pried and ripped off of it and papers, bottles and containers were strewn about. The door which led from a doctor’s waiting room to the drug store had been forced open by means of some bar — it showed pry marks on the door, with damage above the lock to the right of the door and on the door jam. The open window showed no marks of being pried open, and Major Bray testified later that he could find no latent fingerprints upon the window or anywhere else.

After the three men were arrested the Chevrolet with contents intact was impounded and taken to the front of the police station where the automobile and contents were processed as evidence. In the car were a large nail bar, a sledge hammer, flashlight, the drugs and medicines (State’s Exhibits 1 through 8), money in a plastic clothes basket which Officer Carter saw being carried to the car. In a plastic bucket were also four cartons of Pall Mall and five cartons of Chesterfield cigarettes; there was $138.00 paper currency, a ten dollar roll of quarters, sixteen cents in change and several checks in a white bag found in the automobile.

By stipulation it was agreed that the laboratory tests made by officers Brocksmith and Storer of the St. Louis Police Department showed that the paint from Mr. Mc-Glasson’s safe door matched that found upon a blue pry bar, a red/black pry bar, a brown work glove and three socks, all of which were found in the Chevrolet automobile at the time of defendant’s arrest.

Major Bray of the Berkeley Police Department was called as a witness for defendant and testified that $169.00 found upon defendant’s person at the time of the booking was returned to defendant as his property.

Defendant testified in his own behalf. Pie denied breaking into and entering Mc-Glasson’s pharmacy or that he planned or conspired to do so. On the morning of his arrest he testified that he had been at his stepfather’s lounge on North Lindbergh where he had been working. Perrin and Pope were in the habit of drinking at the lounge and on the morning in question they told defendant they would ride him home because defendant did not have his car with him. Defendant testified that he and the other two men were 'quite drunk when he got into the back seat of the car which belonged to and was driven by Pope. The next thing defendant knew was when he was awakened and there were the policemen, Pope and Perrin standing there by the car. The police told defendant to get out of the car; that he was under arrest. Defendant then observed some baskets and a sledge hammer lying by the hedge bushes, but none of the items, including the doctor’s bag, was in the back seat of the car where he was sitting.

We must reverse and remand this case for a new trial by reason of two errors of the trial court in the giving and refusing of instructions to the jury. The first of these is Instruction No. C which was refused by the trial court:

“The Court instructs the jury that evidence is of two kinds, direct and circumstantial. Direct evidence is when a witness testifies directly of his own knowledge of the main facts or facts to be proven. Circumstantial evidence is proof of certain facts and circumstances in a certain case, from which the jury may infer other and connected facts which usually and reasonably follow, according to the common experiences of mankind. A crime may be proven by circumstantial evidence, as well as direct testimony of eye witnesses, but the facts and circumstances in evidence should be consistent with each other and consistent with the guilt of the defendant, and inconsistent with any reasonable theory of the defendant’s innocence.”

The evidence here bearing upon defendant’s guilt and implicating him in the commission of the crimes of burglary and stealing is wholly circumstantial. This evidence is that Officer Carter saw defendant and his companion, who was carrying a basket which was later found to contain stolen items from the pharmacy, walking up the driveway of the basement of the building and on to the south on Fay Avenue. Although such facts would give rise to strong inferences that defendant and his companion had entered the building and stolen property therefrom, they are still circumstances. “Direct evidence is said to be 'evidence which if believed proves the existence of the fact in issue without inference or presumption; while circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.’ ” State v. Cox, Mo., 352 S.W.2d 665, 670 [2, 3]. See State v. Swarens, 294 Mo. 139, 241 S.W. 934, as to the inference that may be drawn from the fact of the recent unexplained possession of stolen property.

In State v. Michael, Mo., 361 S.W.2d 664, the facts showed that defendant was seen running from a side door of a burglarized store building by officers who were investigating the cause of an explosion, it being later found that an unsuccessful attempt had been made to blow open a safe in the building. The court said, loe. cit. 665, “While it would be difficult to imagine a more convincing set of circumstances indicating the commission of second degree burglary on the part of appellant, there was no direct evidence that he broke and entered the building, and of course the intent on his part in doing so could only be inferred from the circumstances. Therefore, this was a circumstantial evidence case, and upon proper request appellant was entitled to have the court instruct the jury on the collateral issue as to the effect of or weight to be given by the jury to circumstantial evidence.”

Instruction No. C correctly defines direct and circumstantial evidence in accordance with State v. Cox, supra, and it was error to refuse it in this case. See also State v. Jordan, Mo., 235 S.W.2d 379, as to the consistency of the facts and circumstances with each other and with the defendant’s guilt, and that they must not be inconsistent with any reasonable theory of defendant’s innocence.

Instruction No. 4 was given by the trial court as follows:

“All persons are equally guilty who act together with a common intent in the commission of a crime, and a crime committed by two or more persons acting jointly is the act of all and of each ■one so acting. However, the mere presence of one at or near the scene of a crime does not render him liable as a participator therein. If one is only a spectator, innocent of any unlawful act or criminal intent, and does not aid, abet, assist, advise or encourage another or others in the commission of a crime, that person is not liable as a principal, or otherwise, and should be acquitted. If, however, a person be present, and by words or by actions aids, abets, assists, advises or encourages the crime, with the intent that the words or acts should encourage and abet the crime committed, then that person is equally guilty with the person who actually commits the physical deed.
“In this regard you are instructed that to find the defendant guilty of Burglary in the Second Degree it is not necessary for the defendant actually to have broken into any part of the store and building as alleged in these instructions or actually to have entered the store and building alleged; but, if you so find and believe from the evidence beyond a reasonable doubt that the defendant was then and there present, and did anything toward the completion of the common design to commit the burglary alleged, if you so find, by watching on the outside of the said store and building or otherzvise, then you ought to find him guilty.” (Emphasis supplied.)

Defendant’s complaints as to this instruction are directed toward the above italicized portions thereof, and such complaints are meritorious. First, there was no evidence by which the jury could infer that defendant’s part in the commission of the crimes was acting as a lookout for his accomplices. The only evidence connecting defendant with the commission of the crime was that Officer Carter saw him and another man walking from the basement driveway and to the south on Fay Avenue to the Chevrolet automobile wherein stolen drugs, medicines, cigarettes and money were found along with burglar tools which bore paint marks from Mr. McGlasson’s safe. The decision in Couley v. State, 12 Mo. 462, cited by the state and from which the above emphasized portions of Instruction No. 4 were apparently taken, turned upon the propriety of an instruction upon the subject of a confession. There were other uninduced voluntary statements of defendant that he kept guard while his accomplices were committing a burglary and a larceny. Thus there was evidence that the defendant was keeping watch, and an instruction as to that fact would not have been improper. The law is well settled that instructions to the jury must be supported by the evidence in the case. State v. Scott, Mo., 230 S.W.2d 764, 767 [6, 7]; State v. Bartlett, 359 Mo. 881, 224 S.W.2d 100, 103 [4, 5],

Secondly, the inclusion of the words “or otherwise” in the second paragraph of Instruction No. 4 was error. The jury should be limited to a finding of specific facts, supported by the evidence in the case, upon which its verdict could be based.

Instruction A, refused by the court, would have permitted the jury to find that defendant was actually present when the burglary was committed, but instructed the jury that his presence alone did not make him guilty of the crime charged, and -that before the jury could find him guilty it must be proven to its satisfaction and beyond a reasonable doubt, and that defendant rendered some aid or assistance to the actual perpetration of the crime and such aid must have been furnished with the criminal intent and for the purpose of committing the burglary as charged in the information. Instruction No. 4, above, submitted “However, the mere presence of one at or near the scene of a crime does not render him liable as a participator therein. If one is only a spectator, innocent of any unlawful act or criminal intent, and does not aid, abet, assist, advise or encourage another or others in the commission of a crime, that person is not liable as a principal, or otherwise, and should be acquitted.” It thus appears that the subject matter of refused Instruction A was covered by Instruction No. 4, and the court could not be convicted of error for not submitting these matters twice. State v. Wooley, 215 Mo. 620, 115 S.W. 417, 435. However, upon retrial, an appropriate instruction should be given presenting defendant’s defense that he was present when the burglary was committed, but that he did nothing toward the perpetration of the crime, and that he had no criminal intent. State v. Simon, Mo., 375 S.W.2d 102, 106 [5]; State v. Chaney, Mo., 349 S.W.2d 238, 241.

The judgment is reversed and this case is remanded for new trial.

BARRETT and STOCKARD, CC., concur.

All of the Judges concur.

PER CURIAM:

The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.


author: DALTON, Judge.

text:
    Jack C. CROOMS, d/b/a The Silver Spur, Respondent, v. Hollis M. KETCHUM, Supervisor, Department of Liquor Control, State of Missouri, Appellant.
    No. 50139.
    Supreme Court of Missouri, Division No. 1.
    June 8, 1964.

      Thomas F. Eagleton, Atty. Gen., Robert R. Northcutt, Asst. Atty. Gen., Jefferson City, for appellant.
    C. John Forge, Jr., Curtis K. Cochell, Kansas City, for respondent
   DALTON, Judge.

This is an appeal by Hollis M. Ketchum, Missouri Supervisor of Liquor Control, from the order and judgment of the Circuit Court of Jackson County setting aside, as not supported by competent and substantial evidence on the whole record, a decision of the said Supervisor as entered on March 13, 1963, suspending for 15 days, effective at 12:01 a. m. April 8, 1963, the State Liquor License theretofore issued by the State to Jack C. Crooms, d/b/a The Silver Spur, for a tavern located at 1924 Main Street in Kansas City, Jackson County, Missouri. See Article V, Section 22, Constitution of Missouri 1945, V.A.M.S. and Section 311.700 RSMo 1959, V.A.M.S.

The application to suspend or revoke the State Liquor License of the said Jack C. Crooms was filed on February 21, 1963, with the Department of Liquor Control. The charge indicated in the application was: “That you, Jack C. Crooms, while possessing the aforesaid license, did unlawfully on or about February 9, 1963, or by your employee, sell, vend, give away or otherwise supply intoxicating liquor to Ruth Ann Henderson, who was under the age of 21 years. All in violation of and contrary to Section 311.310 R.S.Missouri, 1959 [V.A. M.S.].” Regulation 15, subsection (a) of the Rules and Regulations adopted in 1960 by the Supervisor of Liquor Control, as hereinafter referred to, was also set out in the application.

Notice was duly given licensee that a hearing would be held on said application at the office of the Supervisor of Liquor Control in the State Office Building in Jefferson City, Missouri, at 10 a. m. on the 13th day of March, 1963. Licensee appeared in person and by counsel and a hearing was held pursuant to the show cause order included in the notice. See Section 311.690 RSMo 1959, V.A.M.S.

The evidence tended to show that a license for one year had been duly issued to Jack C. Crooms on July 1, 1962, to sell liquor in Missouri at retail by the drink at The Silver Spur, 1924 Main Street, Kansas City, Missouri. The evidence further tended to show that the Supervisor had duly adopted Rules and Regulations, as authorized by Section 311.660 RSMo 1959, V.A.M.S., and particularly Regulation 15, subsection (a) to the effect that: “Licensees are at all times responsible for the conduct of their business and are at all times directly responsible for any act or conduct of any employee on the premises which is in violation of the Intoxicating Liquor Laws or the Nonintoxicating Beer Laws or the Regulations of the Supervisor of Liquor Control.”

Other evidence tended to show that, on the evening of February 8, 1963, one Donald Horek, a police officer employed by the Kansas City, Missouri, Police Department and connected with the vice-unit, was operating with State Agent George Rose of the Missouri State Department of Liquor Control and Investigator Frank Frey, of the Kansas City Liquor Department. They were engaged in a routine investigation of taverns in Kansas City, Missouri. About 1:05 a. m. February 9, 1963, when they entered The Silver Spur tavern, they observed that Ruth Ann Henderson, a white female, age 18, had a bottle of 5 percent beer and a glass. Witness Horek observed her drinking as he entered the tavern. She was seated at the rear of the premises in the last booth and, when inquiry was made of her as to the date of her birth, she at first presented a birth certificate showing the name of Martha Louise Haley, which gave a birth date of June 1, 1940, but she subsequently stated that she had obtained the Haley certificate by picking it up from a street in Kansas City some six months before; and that she had used this birth certificate in purchasing liquor previously, including three bottles of Schlitz beer, at forty-five cents each, on the evening in question. She further admitted her true identity as Ruth Ann Henderson and gave her age as 18 years. The bottle of Schlitz beer that she was drinking from was then seized by Officer Horek and Miss Henderson was placed under arrest. See Sections 311.320 and 311.325 RSMo 1959, V.A.M.S.

Miss Henderson, as a witness for the Department of Liquor Control at the hearing on March 13, 1963, testified that she resided with her parents at 816 Bennington, Kansas City, Missouri, and that she was employed by the Credit Endorsement Company, a company engaged in the loan business. When this witness was presented, counsel for licensee admitted that this girl was in licensee’s establishment on the date in question (February 9, 1963) and that she did have in front of her a bottle of beer. The witness, however, further testified that she had purchased the beer in question at The Silver Spur tavern from a waitress, who subsequently testified and gave her name as Agnes Marie Carletti. The last bottle of beer purchased by Miss Henderson was the one seized by the agent and this bottle was identified by Miss Henderson at trial as bearing her initials on the top left-hand corner. It was the bottle that contained the beer she had purchased from the mentioned waitress in the tavern on February 9, 1963. Witness Henderson also testified that her birth date was July 25, 1944, and she gave her age as 18 years. She also identified a certified copy of her birth certificate showing her birth date, her correct name and the correct name of her father and mother. She also testified that she had been in the tavern previous to the date in question; that she had presented the Martha Louise Haley birth certificate when buying beer; and that she did not know how many times she had used the Haley birth certificate for identification purposes, since finding it. She admitted that she knew she was committing an offense when presenting a known false birth certificate for the purpose of being able to purchase liquor.

The licensee, Jack C. Crooms, testified on his own behalf that he was the holder of the liquor license in question, which was License No. 2419; that he had observed the waitress check a birth certificate before she permitted Miss Henderson to purchase beer. He said that he had instructed his employees with reference to youths entering his establishment. He further testified that he had attempted to comply with all the State and City regulations with reference to his business; that Agnes Carletti was one of his employees who hacLbeen employed about eight months; that she was on duty on February 9, 1963; and that she had made the sale in question to Miss Henderson.

Agnes Marie Carletti also testified on behalf of the defendant, her employer. She stated that she was employed as a waitress in The Silver Spur tavern in Kansas City, Missouri; that she was licensed to act as a waitress in such an establishment and carried an I. D. card from the City License Liquor Control; that Ruth Ann Henderson showed her an “I. D. card” to the effect that she was born.dn 1940, which would make her 22 years of age, and that thereupon she had sold the liquor in question to Ruth Ann Henderson on February 9, 1963.

Other evidence tended to show that the beer bottle in question was labelled Schlitz Beer; and that a laboratory test, subsequently made, showed that the portion of Schlitz Beer remaining in the bottle at the time it was seized from Miss Henderson was 5 percent beer, in that it contained 4.52 percent of alcohol by volume and 3.60 percent of alcohol by weight, as determined by the chemist for the Liquor Control Department. Witness Rose, who was present when the beer was seized, testified that he had thereafter delivered it to the chemist in Jefferson City.

A certified copy of the birth certificate of Ruth Ann Henderson was also offered and received in evidence showing, as stated, that the date of her birth was July 25, 1944. The birth certificate of Martha Louise Haley was also received in evidence. It showed the date of her birth as June 1, 1940.

On the basis of the evidence hereinbefore reviewed, the Supervisor of Liquor Control found the facts to be that Jack C. Crooms was the holder of a license duly issued to him by the Department of Liquor Control permitting him to sell intoxicating liquor by the drink; and that on or about February 9, 1963, Agnes M. Carletti, an employee of the said Crooms, had sold intoxicating liquor to Ruth Ann Henderson, a person under the age of 21 years.

As conclusions of law, the Supervisor fdund that Section 311.310 RSMo 1959, V.A.M.S. prohibits a licensee or his employee from selling intoxicating liquor to' arly person under the age of 21 years; that Regulation 15, subsection (a) of the Rules and Regulations adopted by the Supervisor of Liquor Control made the licensee responsible for the conduct of licensee’s business and also made the licensee responsible for the acts of his employees on the licensed premises, when such employees acted in violation of the laws governing the sale of intoxicating liquor; that the Supervisor’s Rules and Regulations for the Department of Liquor Control had been duly adopted by the supervisor pursuant to authority given him by Section 311.660 RSMo 1959, V.A.M.S. and that the Supervisor of Liquor Control was authorized to revoke or suspend the license of any licensee for failure to obey the Rules and Regulations so adopted by the Supervisor of Liquor Control. He further found that Section 311.680 RSMo 1959, V.A.M.S. further authorizes the Supervisor of Liquor Control to revoke and suspend the license of licensee Crooms should said licensee violate any of the provisions of Chapter 311 RSMo 1959, V.A.M.S.

Thereupon the Supervisor entered the order, as hereinbefore stated, to the effect that the liquor license issued to the said Jack C. Crooms be suspended for 15 days, effective 12:01 a. m. April 8, 1963, and the licensee was duly notified. Thereafter a petition for judicial review of the findings of the Supervisor of Liquor Control was filed in the Circuit Court of Jackson County, pursuant to’Section 311.700 RSMo 1959, V.A.M.S., and a hearing was duly had in the circuit court on said petition for judicial review and, on April 5, 1963, the circuit court entered its order finding that the decision in question of the Supervisor of Liquor Control, as hereinbefore set out, was not supported by competent and substantial evidence on the whole record and the decision was set aside. A motion for a rehearing was duly filed on behalf of the Supervisor of Liquor Control, wherein it was contended that the court had substituted its judgment for that of the Supervisor. Thereafter, the Supervisor’s motion for rehearing was taken up by the circuit court, heard and overruled and the Supervisor filed his notice of appeal to this Court.

This Court has jurisdiction of the appeal because the Supervisor of Liquor Control of the State of Missouri is a party to the action in his official capacity as an officer of the State of Missouri. See Section 311.610 RSMo 1959, V.A.M.S.; Article V, Section 3, Constitution of Missouri 1945; State ex rel. Favazza v. Ketchum, Mo.Sup., 367 S.W.2d 542, 546[1],

Appellant contends that the circuit court erred in holding that the decision of the Supervisor of Liquor Control was not supported by competent and substantial evidence upon the whole record. Appellant points out that the sworn testimony of the witnesses for both the state and the licensee tended to show and support the finding of the Supervisor that the licensee, Jack C. Crooms, by his employee Agnes Marie Carletti, at the time and place in question, sold intoxicating liquor to Ruth Ann Henderson, a minor under the age of 21 years. The age of Miss Henderson was shown by her sworn testimony and by a certified copy of her birth certificate. The sale of the liquor to her was supported by her own testimony and by the testimony of the waitress employed by the licensee, as well as the testimony of the licensee himself, when he testified that he saw his employee, Agnes Marie Carletti, inspect a document presented to her before his said employee sold and delivered the intoxicating liquor in question to Miss Henderson. In addition, the evidence shows that the liquor which was sold was intoxicating liquor as defined by Section 311.020 RSMo 1959 V.A.M.S.

Section 311.700 RSMo 1959, V.A.M.S. provides with reference to review proceedings in the circuit court: “The review shall be conducted by the court without a jury. The reviewing court may affirm the decision of the supervisor or may reverse or modify it when such decision is not authorized by law and, in cases in which a hearing is required by law, when such decision is not supported by competent substantial evidence on the whole record. The supervisor or any other party to the proceedings may secure a review of the final judgment of the circuit court by appeal in the manner and form provided by law for appeals from the circuit court in civil cases.” (Italics ours.)

In the case of Collins v. Division of Welfare, 364 Mo. 1032, 270 S.W.2d 817, 820[5, 6], this Court stated: “In considering whether there is any substantial evidence of record to support the Director’s findings and order, an appellate court as a matter of law passes only upon the matters of substance. Questions concerning credibility of witnesses or the weight of the evidence are not before us upon this appeal. ‘Substantial evidence’ is evidence which, if true, has probative force upon the issues, i. e., evidence favoring facts which are such that reasonable men may differ as to whether it establishes them; it is evidence from which the trier or triers of the fact reasonably could find the issues in harmony therewith; it is evidence of a character sufficiently substantial to warrant the trier of facts in finding from it the facts, to establish which the evidence was introduced.” (Italics ours.) And see State v. Gregory, 339 Mo. 133, 96 S.W.2d 47, 52; State ex rel. Favazza v. Ketchum, supra, 367 S.W.2d 542, 547.

In the case of State v. Harris, Mo.Sup., 295 S.W.2d 94, 95, in determining whether certain testimony was substantial, this Court stated that the “testimony discloses that it was not inherently incredible, was not self-destructive, was not completely impeached by contradictory evidence, and was such that reasonable minds might believe it. Consequently, his testimony constituted substantial evidence, and, in determining its sufficiency, we accept that substantial evidence as true, together with all inferences that may reasonably be drawn therefrom.” And see Cupples-Hesse Corp. v. State Tax Commission, Mo.Sup., 329 S.W.2d 696, 701 [11,12], where this Court stated in detail its reasons for holding that certain evidence presented was not substantial. Also see Koplar v. State Tax Commission, Mo.Sup., 321 S.W.2d 686, 697.

In Burke v. Coleman, 356 Mo. 598, 202 S.W.2d 812, it was held that where, upon all the evidence before him involving the credibility of the witnesses who gave oral testimony, the Supervisor of Liquor Control could reasonably have made an order of revocation of a State Liquor License because the licensee had made sales of liquor on Sunday, the circuit court was not authorized to reach the conclusion that the Supervisor’s decision was against the weight of evidence and to set it aside.

In the case of State ex rel. Favazza v. Ketchum, Mo.Sup., 367 S.W.2d 542, 546, this Court said: “It is not the province of this court, nor was it the province of the circuit court to determine this case on its merits. That is the function and duty of the Supervisor of Liquor Control. Our duty is to review the case for the purpose of determining whether upon the whole record the findings of fact and suspension of respondent’s license is supported by competent and substantial evidence. Wood v. Wagner Elec. Corp., 355 Mo. 670, 197 S.W.2d 647, 649; Seabaugh’s Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55; Lewis v. Lowe & Campbell Athletic Goods Co., Mo.Sup., 247 S.W.2d 800. * * * Neither the circuit court nor the appellate court may substitute its judgment on the evidence for that of the Supervisor of Liquor Control, but said courts are authorized to and may decide whether the Supervisor reasonably could have made the findings reached and the result stated upon a consideration of all the evidence before him.”

On the record presented to it in this case the circuit court erred in holding that “the decision of the Supervisor of Liquor Control entered on March 21 [sic], 1963, is not supported by competent and substantial evidence on the whole record.”

Respondent has made no response to the points relied upon by appellant, but directs our attention to other matters. Respondent first contends that appellant’s notice of appeal was not filed with the Clerk of the Circuit Court of Jackson County until twelve days after the hearing and, therefore, that it was not timely filed. In support of this contention respondent cites Supreme Court Rule 82.04, V.A.M.R., which does not support his contention in view of the facts shown by this record. The transcript, approved by both appellant and respondent, shows that the Supervisor’s decision was set aside on April 5, 1963, and his motion for a rehearing was filed on April 17, 1963, and was overruled by the court on April 17, 1963 and, on the same day, notice of appeal was filed. It is immaterial that the notice appears to have been dated April 15, 1963. (See Supreme Court Rule 82.05(b).) Further, the notice of appeal filed in this Court shows that it was filed in the Circuit Court of Jackson County on April 17, 1963, and it bears the circuit clerk’s file marks as of that date.

In referring to Supreme Court Rule 82.04, appellant disregards the fact that the judgment appealed from was entered April 5, 1963, and that the Supervisor’s motion for a rehearing was filed on April 17, 1963, and within the fifteen days granted by Supreme Court Rule 78.02. (And see Section 311.700 RSMo 1959, V.A.M.S.) A timely motion having been filed, the judgment of April 5, 1963, did not become final in this particular case until the motion, thereafter timely filed, was overruled within ninety days. Supreme Court Rules 78.02 and 78.04. Notice of appeal was timely filed in view of the fact it was filed on the same day the after-trial motion was overruled. This Court has jurisdiction of the appeal.

Respondent further contends “that the Supervisor of Liquor Control has no jurisdiction to hear evidence of violations of a penal statute or to find that a violation of a penal statute has occurred, until such time as either a Magistrate Court or a Circuit Court has heard the evidence and ruled thereon.” The reference to. Section 311.680 RSMo 1959, V.A.M.S. does not support respondent’s contention, since this section provides that: “Whenever it shall be shown, or whenever the supervisor of liquor control has knowledge that a dealer licensed here under * * * has violated any of the provisions of this chapter, said supervisor of liquor control shall suspend or revoke the license of said dealer, but the dealer must have ten days’ notice of the application to suspend or revoke his license prior to the order of revocation or suspension issuing, with full right to have counsel, to produce witnesses in his behalf in such hearing and to be advised in writing the grounds upon which his license is sought to be revoked or suspended.”

It will be noted that this section uses the words “has knowledge that” a licensed dealer “has violated any of the provisions of this chapter,” and that in determining the question of violation notice and a hearing are provided for.

Respondent confuses the word “violation” as used in this statute with the term “conviction” used in Section 311.720 RSMo 1959, V.A.M.S. which section, in part, is as follows: “Conviction in any court of any violation of this chapter shall have the effect of automatically revoking the license of the person convicted, and such revocation shall continue operative until said case is finally disposed of, * *

If the word “violation” as used in Section 311.680, supra, meant “conviction,” as respondent contends that it does, it would have been unnecessary to provide for notice and a hearing under this statute, since notice and a hearing would have preceded any “conviction.”

The applicable rule is that if the statute directs the revocation of the license on “conviction” of such an offense, there must first have been a final judgment, conclusively establishing guilt, rendered by a court of competent jurisdiction, and, of course, this would include final disposition on appeal, but, when the cause of revocation is specified in the statute as a “violation” of the laws, the licensing authorities may act on other evidence than a judgment of final conviction, and the license may be revoked even though the licensee has been acquitted of a criminal charge for the same “violation” as is made the basis of the revocation. See 48 C.J.S. § 17S, Intoxicating Liquors p. 28S. This rule is supported by many decisions. See: State v. Seebold, 192 Mo. 720, 91 S.W. 491, 492; Whitmore v. McCarroll, 198 Ark. 211, 128 S.W.2d 244, 245; Keller v. Kentucky Alcoholic Beverage Board, 279 Ky. 272, 130 S.W.2d 821; Ebling v. City of Rome, 54 Ga.App. 608, 188 S.E. 727, 728; Caserta v. Mills, D.C. N.Y., 28 F.2d 637; United States Industrial Alcohol Co. v. Blair, D.C.Pa., 6 F.2d 658; Santangelo v. Blair, D.C.N.Y., 28 F.2d 875; Paoli v. Mason, 325 Ill.App. 197, 59 N.E.2d 499, 503 [2-7] ; Moore v. State Board of Equalization, 76 Cal.App.2d 758, 174 P.2d 323; Michael v. Town of Logan, 247 Iowa 574, 73 N.W.2d 714; Miles v. State ex rel. McLane, 53 Neb. 305, 73 N.W. 678, 679.

Respondent in support of his second point also refers to Section 311.020 RSMo 1959, V.A.M.S. which defines intoxicating liquors as those containing in excess of 3.2 percent of alcohol by weight. Apparently this section was cited on the theory that, since there had been no “conviction” there was no final adjudication that the Schlitz beer sold was conclusively shown to be intoxicating liquor. However, in this case the Supervisor could and did make that determination. Respondent also refers to Article I, Section 31, Constitution of Missouri 1945 providing “[t]hat no law shall delegate to any commission, bureau, board or other administrative agency authority to make any rule fixing a fine or imprisonment as punishment for its violation.” The provision has no application to the facts in this case.

Respondent further contends “that Regulation 15, subsection (a) of the Rules and Regulations of the Supervisor of Liquor Control for the State of Missouri is not applicable to transfer liability to respondent under Section 311.310 RSMo 1959 [V.A. M.S.].” Said section, in part, provides that: “Any licensee under this chapter, or his employee, who shall sell, vend, give away or otherwise supply any intoxicating liquor in any quantity whatsoever to any person under the age of twenty-one years * * * shall be deemed guilty of a misdemeanor ; * * * ” (Exceptions provided for medical purposes only.)

Regulation 15, subsection (a) of the' Rules and Regulations of the Supervisor of Liquor Control has been set out above and it need not be repeated here; however, its adoption was fully authorized pursuant to the authority granted by Section 311.660 RSMo 1959, V.A.M.S., which, in part, provides that: “The supervisor of liquor control shall have the authority to suspend or revoke for cause all such licenses; and to make the following regulations, without limiting the generality of provisions empowering the supervisor of liquor control as in this chapter set forth as to the following matters, acts and things: * * * (4) Prescribe the terms and conditions of the licenses issued and granted under this law; * * * (6) Establish rules and regulations for the conduct of the business carried on by each specific licensee under the license, and such rules and regulations if not obeyed by every licensee shall be grounds for the revocation or suspension of the license; * * * (10) To make such other rules and regulations as are necessary and feasible for carrying out the provisions of this chapter, as are not inconsistent with this law.”

In support of respondent’s third point he argues that Regulation 15(a), supra, “has allowed the Supervisor to hold the owner criminally liable for the acts of an employee”; and that “The Supervisor has no power to designate who is and who is not responsible for alleged criminal acts as this has always been the province of the Courts and not of administrators.”

Before finally disposing of this point, we shall state the remaining contentions made hy the respondent, to wit: “That respondent is presumed to be innocent of any violation of Section 311.310; that no amount of evidence or admissions can overcome this presumption except a jury or a court of competent jurisdiction sitting as a jury”; and that “The only way that the Supervisor can have knowledge of a violation is after a proper court by proper criminal procedure convicts the accused.”

The final contention is somewhat to the same effect, to wit: “That the Circuit Court was correct in deciding that respondent was not guilty of violation of Section 311.310, R.S.Mo. 1959 [V.A.M.S.], on the basis of evidence adduced before the Supervisor of Liquor Control.” Respondent insists that, “The one element that the Supervisor failed to show and which was absolutely necessary to substantiate his findings was that the respondent has been found guilty by a jury or a court sitting as a jury.” In conclusion, the respondent insists that, “The Supervisor failed on two counts to establish the necessary proof as required in that he failed to establish that the respondent was in any way responsible for the sale to the minor and secondly failed to ■overcome the presumption of innocence which cloaks this respondent. And therefore failed to establish sufficient grounds •for the suspension of the license * * *.”

We find no merit in any of these assignments. The suspension of a liquor license for a violation of applicable statutes or regulations is not imposed as a punishment for a crime, but for the purpose of enforcing the conditions and regulations upon which the permit, license, or privilege was granted. Where a license is properly suspended by the Supervisor for violation of the conditions upon which the license or permit was issued, the suspension is unaffected by whether a criminal charge is filed or prosecuted, or whether the licensee is acquitted or convicted upon the violation upon which the license was suspended or revoked. See authorities, supra.

It is apparent from the various contentions made by respondent that counsel proceeds upon a false theory, to wit, that this is a criminal proceeding before the Supervisor rather than an administrative proceeding concerning the enforcement of the Regulations governing a privilege granted under state law. Respondent has entirely overlooked the fact that it has been long established in this state “ 'that the liquor traffic is not a lawful business, except as authorized by express legislation of the state; that no person has the natural or inherent right to engage therein; that the liquor business does not stand upon the same plane, in the eyes of the law, with other commercial occupations. It is placed under the ban of law, and it is therefore differentiated from all other occupations, and is thereby separated or removed from the natural rights, privileges, and immunities of the citizen.’ Pinzino v. Supervisor of Liquor Control, Mo.Sup., 334 S.W.2d 20, 27 [6-8] ; State v. Wipke, 345 Mo. 283, 133 S.W.2d 354, 359[9,10]; State v. Parker Distilling Co., 236 Mo. 219, 255, 237 Mo. 103, 139 S.W. 453, 461.

On the record before us on this appeal and the issues presented, the judgment of the trial court is reversed and the cause is remanded with directions to set aside the judgment entered on April 5, 1963, and to affirm the finding and order of the Supervisor of Liquor Control.

All concur except HENLEY, J., not sitting.


author: HYDE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Leon Claude FRITZ, Appellant.
    No. 50292.
    Supreme Court of Missouri, Division No. 1.
    June 8, 1964.
    Joseph A. Harrington, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., James J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent
   HYDE, Presiding Judge.

Defendant charged under the Habitual Criminal Act (Sec. 556.280) was convicted of burglary in the second degree and sentenced to 10 years’ imprisonment. Secs. 560.045, 560.070, 560.080, 560.095. (Statutory references are to RSMo and V.A.M.S.) Defendant has appealed and his brief raises the issue of sufficiency of the evidence to make a case for the jury or to support the submission of burglary in the second degree by Instruction No. 2.

It was stipulated that defendant had previously been convicted of burglary, second degree, sentenced to two years’ imprisonment, went to the penitentiary, served time there but was later released on parole and finally discharged, so there was no issue about the applicability of the habitual criminal statute. The information charged burglary in the first degree (Sec. 560.040) but the submission was on burglary in the second degree as authorized by Sec. 556.220, State v. Whitaker, Mo.Sup., 275 S.W.2d 322, 323. The submission was on “bursting into and opening the front door of said dwelling house.”

The State’s evidence showed that on December 1, 1962, Charlotte Havner Monahan was asleep on a divan in the first floor front room very close to the front door, of the house at 3711 Garfield Street in Kansas City, Missouri, in which her mother lived with her husband and her brother-in-law. Charlotte was the last of the family to go to bed, the other members of the household being asleep in beds in other roomsmearby. About 3 :30 a. m. she felt somebody’s hands on her breasts, screamed for her parents and tried to hold the man she saw so her parents could get to him. The man (later found to be defendant) hit her and she fell, and he ran out the front door, but her mother got to her in time to see a man run out the open front door. When Charlotte went to bed, the front door of the house was closed but not locked and the door (near the front door) to the living room where she was sleeping was also closed. When defendant ran out the front door he ran toward two uniformed police officers who had just arrived in answer to a call about a disturbance in the house next door. The officers heard a woman scream, heard someone stumbling over furniture in the house and saw defendant run out toward them. They ordered him to stop but he ran around to the rear of the house next door. The officers closely pursued defendant to the 2100 block of 37th Street, where he ran out into the middle of 37th Street, stopped, turned and pointed a pistol at the policemen. Officer Andrews stopped and called a warning to Officer Arnold who ran on past him towards defendant. As Officer Arnold came towards him,, defendant threatened to shoot and the officers heard a click when defendant “jacked the chamber” of his pistol. Both policemen then fired at defendant, each firing-several shots. Defendant turned and ran across to the north side of 37th Street and' into a back yard where he fell. Defendant had received three wounds, in the wrist, leg- and side; and a fully loaded 7.65 millimeter German make pistol was on the ground beside him. The officers found that defendant had a screwdriver and a pair of pliers-in his pocket.

We have held that the opening of an unlocked door constitutes a forcible breaking within the meaning of second degree burglary statutes, State v. Ewing,. Mo.Sup., 298 S.W.2d 439, 443; State v. O’Brien, Mo.Sup., 249 S.W.2d 433, 434; State v. Stewart, 329 Mo. 265, 44 S.W.2d 100, 103, and cases cited; State v. Woods, 137 Mo. 6, 38 S.W. 722; 12 C.J.S. Burglary § 3, p. 670. We have also held that the requisite intent to steal accompanying a charge of burglary can be proved from the circumstances, State v. Lugar, Mo.Sup., 84 S.W.2d 614, 616; State v. Whitaker, Mo. Sup., 275 S.W.2d 322, 324; State v. Grant, Mo.Sup., 275 S.W.2d 332, 334; State v. Smith, Mo.Sup, 357 S.W.2d 120, 123. The-evidence shows that the defendant entered the house at nighttime armed with a loaded pistol without the consent of the occupants. See State v. O’Brien, Mo.Sup, 249 S.W.2d 433, 434. The evidence as to the defendant molesting Charlotte also might indicate an intent to commit some other crime, but we find his nighttime entry, his subsequent conduct in striking her when discovered, fleeing from the house and from the approaching police, threatening the police with a loaded pistol, together with the fact that tools were found in his possession which could have been used for entering buildings and removing articles from them, constituted sufficient circumstantial evidence to support a finding that the defendant entered with the intent to steal. See State v. Norris, Mo.Sup., 365 S.W.2d 501, 503-504. Therefore, in view of the provisions of Secs. 560.045, 560.070, 560.080 and 556.220, we hold that defendant’s motion for acquittal on the ground that there was no evidence of entry with intent to steal cannot be sustained. This also disposes of defendant’s claim that it was error to give Instruction 2 because the evidence was insufficient to justify a finding that defendant entered the house with intent to steal.

The errors alleged in defendant’s motion for new trial concerning Instruction 2 was that it “assumes there was a breaking into the premises, when the evidence does not prove such a breaking; that said instruction assumes that articles of value were kept in said premises; that the instruction assumes an intent to steal on the part of the defendant, which is not supported by the evidence.” However, this instruction required the jury to “find from the evidence in this case, beyond a reasonable doubt” that defendant did “break and enter into the dwelling house” specified “by bursting into and opening front door of said dwelling house * * * and further find that in said dwelling house divers goods, wares, merchandise and valuable things of any value were kept and deposited and that said defendant then and there broke into and entered said dwelling house, as aforesaid, with the felonious intent to steal any goods, wares, merchandise and valuable things therein.” Thus it clearly appears that this instruction did not make the assumptions claimed in defendant’s motion but required the jury to make such findings to reach a verdict of guilty.

We consider the other ground argued in the brief filed by defendant’s counsel, that the court erred in giving Instruction 2 because the evidence was insufficient to justify a finding that defendant entered the house through the front door, although not raised in his motion for new trial, because it applies to the claim that the evidence did not make a case for the jury. It is argued that a photograph of the house at 3711 Garfield, introduced in evidence by the state, shows three windows facing on the street (two upstairs over a porch and one on the first floor opening on the porch at the side of the front door) and shows some indication of side windows. Defendant’s brief says: “The State elected to charge that the Defendant gained access by the front door only. It succeeded in proving that Defendant came out of the front door, but there is no testimony and no evidence of how he gained access to the premises.”

State v. Ewing, Mo.Sup., 298 S.W.2d 439, and State v. Allen, 344 Mo. 335, 126 S.W.2d 236, are cited in defendant’s brief on this point. In the Allen case, it was stated: “If the doors and windows were left open, there could be no burglary.” The court held the proof insufficient because “there was absolutely no evidence that the doors and windows had been secured or closed. In fact, there is no proof that the house had any doors or windows.” However, this was a first degree burglary case. In the Ewing case, where the defendant was convicted of second degree burglary of a service station which was operated in connection with a garage and used-car business, we noted (298 S.W.2d 1. c. 443) the lack of any evidence to show “that the west door and a back window were closed prior to the time of defendant’s entry into thé building” on August 11, 1955. We held “there was no evidence that defendant’s entry into the building was burglarious in that the evidence failed to show the essential element of a ‘breaking.’ ”

However, the picture of the house in evidence herein shows the unlocked front door to have been the best available entrance to the house, which was built on a rather high foundation requiring a flight of at least five steps to reach the front porch. Furthermore, one of the police officers stated that the picture (apparently taken at night) “is a fair representation of the premises on the night of this occurrence”; and it shows the window on the porch closed. Since it appears likely that other windows could not have been reached without a ladder or other aid for climbing, of which there was no evidence, we consider it to be a reasonable inference from the evidence that defendant entered by opening the unlocked front door, especially since the evidence shows defendant was only in the front part of the house and did not disturb anyone except Charlotte who was sleeping close to the front door. We think this situation is very similar to that in Daniel v. State, Ga.App., 173 S.E. 485, 486, in which it was said: “It is only necessary to say that where, on a trial for burglary, the evidence shows that a person residing in the burglarized house was awakened in the early morning hours by a noise, and on investigation saw the defendant coming out of the back of the house, and upon further investigation discovered that a window in the back of the house and the refrigerator door inside the house, which were closed when the occupants of the house retired for the night, were open, and where it is further shown that the defendant was a few minutes later apprehended running only a few blocks from the scene of the crime, the evidence authorizes a finding that the defendant was guilty of the crime charged.”

Furthermore, in State v. O’Brien, Mo.Sup., 249 S.W.2d 433, 434, in which defendant was seen jumping from an open kitchen window, which the State’s evidence showed was closed but not locked, we said: “In these circumstances the defendant contends that there is no ‘direct evidence’ that he ‘broke into the Amann home.’ Even though he was seen jumping from the rear window', it is argued that there was no evidence that he entered the house, or if he did as to how the entry was effectuated. If the defendant means that there must have been some evidence of a forcible ‘bursting or breaking’ of a window he has misconceived the difference in burglary in the first degree, Section 560.040 RSMo 1949, V.A.M.S., and burglary in the second degree, the offense for which he was tried and convicted. Section 560.070 RSMo 1949, V.A.M.S. These statutes have been in force since territorial days and it has been pointed out many times that it is only in first degree burglary that the method of gaining entry by ‘bursting or breaking’ is important. Any other ‘breaking and entering of which shall not be declared by any statute of this state to be burglary in the first degree * * if the entry is with the intent to steal or commit any crime therein, is burglary in the second degree. Section 560.070 RSMo 1949, V.A.M.S.; State v. Young, 345 Mo. 407, 133 S.W.2d 404. Thus the state’s evidence plainly shows, circumstantially, including the green hat, State v. Wilson, 225 Mo. 503, 523, 125 S.W. 479, that the defendant entered the apartment by raising the kitchen window and that is a sufficient breaking and entry without the meaning of the statute defining burglary in the second degree. State v. Tutt, 63 Mo. 595; State v. Stewart, 329 Mo. 265, 44 S.W.2d 100.” See also State v. Henderson, 212 Mo. 208, 214, 110 S.W. 1078; State v. Helms, 179 Mo. 280, 285, 78 S.W. 592; State v. Woods, 137 Mo. 6, 10, 38 S.W. 722. We hold there was sufficient circumstantial evidence to support a finding that defendant entered the house by opening the front door so that it was not error to submit such finding in Instruction No. 2.

The judgment is affirmed.

All concur except HENLEY, J., not sitting.