From the Circuit Court of Adair County; Criminal Appeal From Felony Conviction-Burglary and Stealing; Judge William E. Stewart; Reversed and remanded
Appellant (to whom we shall refer as defendant) was convicted in the Circuit Court of Adair County for burglary and stealing and sentenced to the penitentiary for five years for burglary and three years for stealing. He duly perfected his appeal.
The information charged defendant with breaking and entering a grocery store owned by Mackie & Williams, Inc., and stealing therefrom certain specified items of personal property of the value of $631.98. The sufficiency of the information is not questioned.
The evidence was sufficient, if believed, to establish that someone did feloniously break and enter the store and steal personal property valued at approximately $630, and we need not detail such testimony. However, the defendant contends that his motion for directed verdict of acquittal should have been sustained because there is no evidence that Mackie & Williams, Inc., was a corporation and the owner of the stolen goods. It was not necessary to allege or prove the legal status of the owner of the goods stolen. State v. Hedgpeth, 311 Mo. 452, 457, 278 S.W. 740, 741; State v. Zammar, (Mo. Sup.) 305 S.W.2d 441, 442. When all the evidence and circumstances are considered, we think it is sufficient to submit the issue of ownership in Mackie & Williams. Witness Durbin testified that he was the manager of the Mackie & Williams Food Liner; that when he entered the store the morning after the burglary, he observed that the safe had been beaten all to pieces, and that there was debris all over the floor and all kinds of damage in the front of the store; that he made an inventory and found certain items of merchandise missing. He enumerated the various items and the value of each; that a coffeepot and wicker basket which were found near the store by the police were definitely out of the store.
Witness Bagley testified that he was a meat cutter at the store, and that a part of a ham that was found nearby the morning after the burglary was from the store, and that several hams were missing.
The court did not err in overruling defendant's motion for directed verdict because of failure of proof of the incorporation of Mackie & Williams, or for failure of proof of the ownership of the stolen goods.
Defendant's principal ground of prejudicial error is the admission of the testimony of witness Highway Patrolman Paul Jones. This testimony relates to certain alleged statements made by defendant and recorded on a tape recorder installed in the jail where defendant was confined.
Garland Winn testified that he was chief radio operator for the State Highway Patrol; that he installed a tape recorder in the jail at Lancaster, Missouri; that the microphone was located in a certain cell of the jail in the basement of the court house and the recording equipment was located in the circuit court room on the third floor thereof; that the recorder could be turned on and off by pressing a "start button;" and that there was "headset connection," or, as one witness said, "earphones," which would permit the operator to hear the same conversation that was being recorded. This witness did not operate the recorder.
Witnesses Staggs, of the highway patrol; Homer Adams, Sheriff of Schuyler County; Ronald Farrell, an amateur radio operator; James Russell, a television engineer; and Paul Jones, highway patrolman, all testified concerning the installation and working condition of the recording equipment. However, Paul Jones was the only person who operated the recorder ...