*1 reasonable, Van, you guilty have found him State v. (Mo.App. beyond (Em- 1976). reasonable doubt.” added.) phasis Reversed and remanded. First, prosecu-
This Court held that: argued tor MORGAN, that reasonable belief satisfied J., BARDGETT, P. J., and requirement MOORE, a reasona- Special Judge, concur. prosecutor strayed ble doubt and that the RENDLEN, J., concurs in result. language defining the civil burden of into hand, proof. as in Secondly, the case
prosecutor’s promptly statement was ob- overruled, objection was
jected to and the
giving argument imprimatur Third, the
trial court. Court found that the
prosecutor passing was content with subject upon
reference to the overruling the proceeded but to re- Missouri, STATE of peat erroneous definition reasonable Plaintiff-Respondent, doubt, as here. v. present The statements of counsel in the FEELER, Defendant-Appellant. Eddie S. attempt case were not an to discuss “rea- represents sonable doubt.” Rather it No. 11707. attempt to define “reasonable doubt” which of Appeals, Judge is a function of the not of coun- District, Southern sel. En Banc. the prosecutor While both and the May argument defense attorney by every out doubt is not reasonable On Rehearing Order June doubt, they are precluded attempting Supreme Court Transferred to define that in any term manner other 15,1981. June than that it is defined MAI-CR 2d 2.20. July Retransferred Further, “The law does not foreclose the Improvidently Transferred. prosecution arguing the facts as instruction, pertain pre to the Court’s nor pointing
vent out to a slight that some
doubt some issue or fact is not necessari Wilbon,
ly a reasonable doubt.” (Mo.App.1978). ruling in the Jones case surely message clear to all counsel that the longer permit would arguments
courts type given juries. made herein to be message should have been abundantly
clear to counsel in this he case since was the made
very argu who the erroneous as well case. Prosecutors
ment the Jones
as defense counsels be advised that attempting
arguments to define reasonable represent
doubt reversible error. “Reason
able doubt is reasonable doubt and that is regard be said can to it.” *2 Ashcroft, Gen., Atty.
John D. Henry T. Herschel, Atty. Gen., City, Asst. Jefferson plaintiff-respondent. for Venters, Venters, Jerry W. & Bartlett P. C., City, defendant-appellant. Jefferson PREWITT, Judge. found set punishment calves and at con- year.
finement one Defendant was “persistent as a offender” under following a “sen- RSMo tencing hearing”, trial seven years sentenced him to imprisonment. points (1)
Defendant’s contend: to sustain a conviction of the prop that the evidence was insufficient to sustain erty”. Chase, 402- conviction; (2) that the trial court erred (Mo.banc 1969). See also State v. Ar denying particu- for a bill nold, (Mo.banc S.W.2d 1978); lars; (3) trial erred in Lewis, (Mo. admitting into evidence at the 1972); Myers, prop- *3 duly certain exhibits “not and (Mo.App.1977). Unexplained possession of authenticated”; and the erly certified and ten property days its after theft sentencing as a judge erred in defendant not too support remote in time to a convic making persistent offender without “the Morse, tion. State v. prior findings required by Section 558.021 (Mo.App.1974). We think the evidence was sentencing”. to to sustain the conviction. De initially We first consider defendant’s fendant was to shown be in the exclusive trial, point. at Defendant did contend possession of the calves six or seven days here, nor does he that the calves were not taking after their and also to have sold Their on stolen. owner testified that Feb- them, not at a barn sale close to where he 21, 1979, ruary twenty he had calves on his lived but at one approximately highway part farm located in the northeastern of miles from there and at least 65 miles from Missouri, Phelps County, and on morn- pastured. where the were calves Point one ing February had sixteen. only is denied. 28, 1979, February On defendant delivered four calves to be sold a livestock auction point Defendant’s second contends company Montgomery City, a mile north that court erred in denying were Missouri. calves sold and defend- particulars bill of because the infor payment day. ant received for them that insufficiently mation the property described later four calves were identified as stolen and the date of such and being missing Phelps those from the County prevented thus properly defendant There other farm. was no evidence con- preparing body his defense. The of the necting defendant with the theft. paragraph motion consisted of one stated: His testify. only
The defendant did witness was his wife. that on She said “Comes now pursuant defendant to Su- February 1979, she and were defendant preme Court Rule 24.03 moves and Missouri, Vichy, at their home in all that to filing direct of a Bill of day evening. They and un- remained there ground Particulars for the and reason 22,. morning February they til the when that the information fails to inform the DeSoto, her went to uncle’s home in Missou- particulars defendant of the of the of- They stayed ri. there until returned charged prepare fense sufficiently to evening. home that On February defense.” Merhoff, stepfather, Lewis her and defend- A motion particulars for a bill of is ad- ant left in truck to go dressed to the discretion of the trial court sale They Salem barn “to sell some items”. ruling and its should not be disturbed unless day. returned about 4:00 or 5:00 m. that there is an abuse discretion. State v. brought Defendant’s counsel out cross- Cox, (Mo.1961). De- during examination the state’s that case fendant here contends four that as calves before this trial Merhoff Lewis admitted were taken he have received better court he that stole the calves. How defend- description of the two he calves ant came into of the calves was and that date of explained. never stealing was insufficient. The information alleged
Numerous cases state that “two calves” were taken “on or “unexplained February 1979”. It is obvious is a sufficient circumstance evidence that the state had no to in preceding paragraph. as to the of the referred information time further give as the state’s wit- The defendant evidence. theft defendant nesses, calves, appeared sentencing owner When defendant including the of the sentencing after the time were not know the exact the calves did months stated that at the description taken. While a better hearing he “found” available, had might been de- calves have been “previously convicted” receiving it fendant does not show how not duty ... obligation “therefore it’s the prejudiced his defense as the motion pro of the Court to fix and determine and not set forth the information was did how you nounce the sentence under those or what were insufficient additional facts circumstances.” No was raised sought, say we cannot that the court abused inadequate findings were made or that denying its discretion in the motion. Point did not have deter is denied. mine sentence. better findings While Appellant’s final contends made, could have been we think that here *4 admitting that the court part trial erred in the oral announcement was sufficient. into evidence four exhibits because There evidence conflicting was before “duly properly were not certified and and he that he judge found are authenticated”. Three of the exhibits punishment. assess thus obviously He records, copies pur of court each of which found, showed, as exhibits that defend ports separate “Judgment to show a ant been had convicted of at least committing of defendant for Sentence” felonies committed at different times and felony. prior remaining The exhibit was to not related the theft of calves. Un part pertaining certified as a records 1978, der RSMo this made de § to defendant in the Classification and As persistent judge’s fendant a offender. The signment Unit Division of Correc “implies specific findings statement in ac The from tions. conviction records were cordance with the finding ultimate and con circuit courts state each of this and were Blackwell, clusion stated.” v. State 459 attested the circuit clerk and imprinted 268, (Mo.banc 1970). judge S.W.2d 272 with the seal of the court. Those exhibits gave defendant trial and his counsel a appear adequately comply to with § speak assessing chance to before the sen 1978, explain RSMo and defendant does not if complaint tence and either had a his brief why he contends there not them, findings, his or lack of it should have compliance with that section. The Granting been at that time. allo- were properly records admitted. v. State cution an opportunity affords Gardner, 614, (Mo.App. S.W.2d any to the sentencing raise infirmities in 1980). The purporting exhibit to from be procedure and if he not does do so the Department the records of the of Correc preserved not review. matter is State tions was objected not to before the trial Goforth, v. (Mo.App. S.W.2d court on the basis now thus contended and 1976). Point is denied. nothing pertaining there is for us to review judgment is affirmed. to the of that A admissibility document. appeal upon raised on must be based J., MAUS, C. and FLANIGAN and theory made to the trial GREENE, JJ., concur. Lang, court. TITUS, dissenting dissents and files (Mo.1974). opinion. Point three also contends BILLINGS, J., concurs in dissent of TI- the trial to specific failed make find TUS, J., and separate dissenting opin- files ings, required by 558.021(3), § ion. 1978,that there was a basis for an extended HOGAN, term. At the J., dissents, state’s joining in dissent of only TITUS, evidence consisted of the four exhibits J.
TITUS, Judge (dissenting). ture—must be shown to convict for the ... Roberts, theft.” State v. I respectfully portion dissent to that (Mo.App.1979). put Or differently 688[5] majority opinion the evi- holds joint where possession is involved: “The dence was convic- sustain the requirement of exclusive possession does stealing. tion of not mean the possession necessarily should not be convicted separate others, must be from pro- all ... inference an essential fact. vided there is other evidence connect James, Mo.App. 113 S.W. ” defendant with the offense .... Likewise, no defendant in a 233[5] Webb, (Mo.1964).1 604[4] compelled case testify criminal should be words, In other joint where or exclusive V; against (U.S.Const, himself Mo. amend. separate not others is Const, I, 19) art. and it violates defend involved, theft may against privilege ant’s self-incrimination to submitted for determination unless place position him in a where he must testi there also be evidence partic- of defendant’s fy to avoid inferences that adverse ipation in the criminal adventure. arise failure to do so. 21 Am. Jur.2d, Law, Criminal 383. Never By process eliminating the fact theless, there in time evolved and circum just noted, situations it appears in Mis- ken, stances our the pronouncement (though jurisdictions) souri in all simply prosecution in connection awith a person, though actually because innocent larceny, unexplained possession prop itself, fortuitously theft or unex- erty recently may, corpus where the (because plainably to remain *5 established, give delicti has been rise to a silent) possessed found alone of previously presumption guilt. Perhaps of in the heat property, predicament by stolen such a it- psittacosis, parroted of this in Mis rule self, sans proof partici- other of affirmative Swarens, 139, souri until State v. 294 Mo. venture, in pation the criminal suffices to 154-155, 934, (banc 1922), 241 S.W. 939[3] Contrawise, warrant a respect- conviction. wherein “inference” was substituted for able authorities hold that any unfavorable others, “presumption.” e.g., Swarens unexplained inferences that arise from Chase, 398, 402-403[4] possession sole recently of stolen property (Mo.banc 1969); Myers, prevail cannot the over constitutional 312, proclaim the (Mo.App.1977), 313[1] to remain or unexplained single silent that present rule a if defendant possession recently goods, of stolen without larceny explain possession does not more, is a insufficient to sustain conviction. recently permits of stolen this property, See, Ruiz, 205, Ariz.App. 11 guilt, inference of the fact of and is a (1970); Larceny P.2d 52A C.J.S. upon basis which the sufficient to submit justice 605. It is anomalous case to the sustain a and to conviction proof indeed that in absence of of the other scholarly of the property. In re theft, participation affirmative in the sim- judicial finement of this stroke broad of the joint ple possession of stolen recently prop- brush, explained it is that the “inference of prevents erty conviction of guilt joint to which unexplained of simple whereas lone the same rise, however, gives one of not is fact and of goods of the condones condemnation inno- law and alone does suffice to submit the cent. Rather, of accused.... some am opinion I of the inference thing unexplained joint posses more than goods—some discussed, recently sion of affirm hereinbefore absent of de- ative ven- participation participation criminal fendant’s other affirmative in “excluding separate “Exclusive” is defined oth- session not from all others” is an Dictionary English pure Language, ers.” Webster’s New World of the adulteration of the Therefore, Language, p. simple. American “exclu- possession” “pos- sive when considered to be stealing, alone would have crime of should not considered the refusal of MAI- to sustain defendant’s conviction. CR2d 3.76 be plain error. Carter v. opinion judgment of the that the nisi 288, 304-305, I am Kentucky, 450 U.S. 101 S.Ct. be reversed and that defendant 1112, 1121-1122, (1981). L.Ed.2d discharged crime should stand of the of request I find no for any limiting instruc- stealing. consequently, infringement tion and Fifth and rights. Fourteenth Amendment
Realizing majority judges of the court do share this or concur Rather, my present view as to the case is dissenting opinion gener- but because of upon that defendant’s conviction the evi importance question interest al dence is insufficient to satisfy the purpose and for the reexamin- involved due-process requirement the State law, ing existing urge I counsel for present evidence rational to seek transfer of the cause to trier fact could find essential ele Supreme Court Missouri accord- charged beyond ments of the crime a rea 30.27, provisions ance with the of Rules Virginia, sonable doubt. Jackson v. 83.02 and V.A.M.R. 307, 319, U.S. 99 S.Ct. 61 L.Ed.2d I find no record evidence HOGAN, J., joins in this dissent. other than defendant’s unexplained posses BILLINGS, J., concurs in dissent and sion support separate dissenting opinion. files charge without consent. might permit evidence Such inference ORDER that defendant received stolen property, as appellant having filed a motion for defined and denounced rehearing or in the alternative for transfer 1978,V.A.M.S., States, Barnes v. United the Supreme Court Missouri 845-846, 2362-2363, U.S. 93 S.Ct. consideration of hereby same court does 380, 387 (1973), if 37 L.Ed.2d but the convic J., Hogan, order as dissenting follows: files supported by permissible tion to be infer opinion; Billings, dissenting withdraws ences, necessary then the evidence to invoke opinion and concurrence in dissent the inference must be sufficient for a ra *6 Titus, J., and majority opin- concurs the juror tional to find inferred fact ion, separate opinion and files on motion for Barnes, supra, a reasonable doubt. 412 U.S. rehearing; Maus, J.,C. Billings, Flanigan, 2361-2362, at S.Ct. L.Ed.2d at Prewitt, JJ., and vote to overrule mo- I 386. realize that there no necessity for and rehearing deny tion for proving appropriation of of transfer; Greene, Hogan, JJ., Titus and owner; property taken was live transfer; vote sustain the motion to 570.030(3Xh), stock. Section RSMo 1978. rehearing therefore the motion for is over- Nevertheless, 570.030.1requires appropri and ruled the motion for transfer denied. purpose deprive” ation “with the and it is fundamental the defendant’s conduct HOGAN, Judge, dissenting. and his state mental must coincide. W. respectfully must Essentially Scott, I dissent. I LaFave and Law A. Criminal at 642 agree Judge what Titus has said in his Because there is my no dissent, view, but I would confine remarks to of the time or the circumstances in particular the facts of this case. In possession which the defendant came in circumstances, infringement cattle, perceive unexplained I possession Fifth and Fourteenth recently property permit defendant’s stolen does not rights amendment because the defendant rational trier fact to infer the neces request sary did not 3.76 MAI-CR2d of conduct coincidence and intent. For given. reason, If requested defendant had I believe the standards enumer Jackson, instruction and the trial court had supra, refused ated in have not been met it, then, light case, State’s thin I discharged. and defendant should stand OR,
ON MOTION FOR REHEARING IN ALTERNATIVE, THE FOR TRANS- Missouri, Respondent, STATE of FER TO THE COURT SUPREME DANIELS,
PER Appellant. CURIAM: Eddie R. requests rehearing Defendant or trans- No. 42535. Supreme to the
fer Missouri Court because Appeals, Missouri Court of general importance interest District, Eastern purpose reexamining existing for the Division Three. relating law effect of unexplained property. recently Dec. States, Barnes v. Motion Rehearing United U.S. and/or Transfer to (1973), Supreme S.Ct. L.Ed.2d held that Court Denied March unexplained an inference of pos- Application to Transfer Denied session does not 17,1982. May due process infringe upon violate nor a de- against privilege fendant’s self-incrimina- Considering
tion. that decision and numer- Supreme opinions,
ous we
think no further examination of this area is
necessary. rehearing motion for is overruled and
the motion for transfer denied.
MAUS, C. and FLANIGAN and
PREWITT, JJ., concur.
BILLINGS, J., by separate concurs opin-
ion on motion rehearing.
HOGAN, TITUS, GREENE, JJ., vote
sustain the motion to transfer.
MOTION FOR REHEARING
BILLINGS, Judge. of recently sto- *7 is, property, explained unexplained,
len my opinion, legitimate circumstance for
a fact-finder to in determining consider
guilt or innocence of defendant. Ac-
cordingly, I withdraw dissent and con- Titus, J.,
currence in. the dissent of opinion.
concur in the majority