Opinion
No. 43618.
October 12, 1953.
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS.
Emanuel Williams, St. Louis, for appellant.
John M. Dalton, Atty. Gen., Hugh P. Williamson and W. Don Kennedy, Asst. Attys. Gen., for respondent.
Defendant was convicted of robbery in the first degree under the habitual criminal act and his punishment assessed at imprisonment in the state penitentiary for the remainder of his natural life. Sections 560.120 and 556.280 RSMo 1949, V.A.M.S. He has appealed.
Appellant has filed no brief in this court and we shall examine the several assignments of error in the motion for a new trial to determine the proper disposition of the cause. It is first contended that the evidence is insufficient to sustain the conviction. This assignment requires a review of the state's evidence.
The evidence tended to show that Sam Geller, the prosecuting witness, resided at 1911 North Florissant Avenue in the City of St. Louis and was employed at 2011 Market Street. He owned real estate, collected rents and kept the money on hand at home to pay notes and bills. On Saturday morning, January 26, 1952, Geller had on hand a total of $4,840 in currency that belonged to him, and since his wife was not to remain at home that day, he (for the first time) put the money in his pocket and took it with him when he left for work. He counted the money at home before he left, it was all there, and he had it with him all day while at work. He had 40 one hundred dollar bills, 8 fifties, 30 tens and 20 fives, all wrapped in one package, which he placed in his right side pocket. He also had on his person $40 additional money and some change. About 7:30 p.m. he left his place of work and started to walk home. As he crossed 17th street, going east, on the north side of Cole Street he saw a colored man in a gray suit walking east on the south side of the same street immediately opposite him. The man was wearing a beige overcoat and a brown hat. At 16th Street the man crossed to the north side of Cole Street and followed five or six feet behind. Geller turned around and looked directly at the man's face and became suspicious and walked faster and faster. On four separate occasions, Geller had a good view of the man's face by the light of the street lights. He had never seen the man before. At 15th Street Geller began to run and ran north on 15th to Carr Street, but the man followed close behind him and, near 15th and Biddle, the man came around and struck him in the face "with an iron" or some metal and broke his jaw. Geller fell and became unconscious. When he regained consciousness, he was leaning against a building, 30 or 40 feet from the street, in an alley between buildings. His head had been injured, blood was dripping from his face, his jaw was broken and all of his money was gone. After he reached his home he was taken to the police station where he reported the robbery and he was then taken to the hospital for treatment.
On the following Saturday, at police headquarters, Geller identified appellant and said "This is the man." On the next day, Sunday, Geller was present at Central District headquarters when the police questioned appellant. Appellant was asked if he knew "this fellow" (Geller) and appellant said that he did. Geller related in appellant's presence what had happened and that appellant had robbed him of his money. Appellant replied that he only got $1,600; and that he had pushed Geller down and put his hand in Geller's back pocket and pulled out the money. Geller told him "It wasn't so * * * he got it out of my hip pocket." Appellant also said he robbed Geller in front of 1655 or 1657 Cole, but Geller said appellant was wrong, it was in front of 1209 North 15th. Geller saw appellant at headquarters the following Sunday and appellant admitted that he got $4,800. Geller testified positively that appellant was the man that assaulted him and took his money. Geller was cross examined at length with reference to his ability to recognize appellant as the robber and with reference to his report to the police after the robbery concerning the age, height, weight and appearance of the robber.
Police officers testified that the arrested appellant about four blocks from 15th and Biddle on the night of February 1, 1952 and later questioned him about the robbery of Sam Geller. The officers who made the arrest testified that they did not arrest appellant on the basis of the description of the robber as furnished the police by Geller, but upon the basis of other information; and that the arrest was made for investigation in this case. These officers testified that appellant at first denied the robbery, but later said that "early in the evening of January 26th he had been drinking, and he was standing on the southeast corner of 17th and Cole, and he observed Sam Geller walking east on Cole, approximately in front of 1655 or 1657 Cole. He walked over behind him, and grabbed him by the hips, and shoved him to the lawn, and then took a billfold from his right rear pocket. He said he took the money out, and threw the billfold on the lawn, and then walked out to 17th and Franklin, then east on Franklin, and to the Illinois Terminal, and he boarded a trolley and went to Brooklyn, Illinois." He then stated that he went to a tavern over there, and counted the money in a lavatory, and counted approximately $1600. He spent the night drinking over there and gambling. From Brooklyn, Illinois he went to Chicago and purchased an automobile, a '49 Mercury car for $1,199 and drove it back to St. Louis on Monday evening. He stated that he paid for the automobile "in 10's and 20's."
Before permitting the several witnesses to tell what appellant had said about the robbery, the court heard evidence outside of the hearing of the jury with reference to whether or not appellant's statements were voluntary. The state's evidence tended to show that the statements were wholly voluntary. At the hearing before the court, appellant testified he was kicked and got a whipping before the questioning, but that he at no time made any confession or statements to the police or to anyone else implicating himself in connection with the charge against him. Appellant further testified that he was booked for investigation but not told what for; that at the "show up" on Saturday morning he heard some one say "I know him by his walk"; and "that, when he (appellant) was asked how he had gotten the automobile, he said he "had thirteen hundred dollars for the job at home saved."
The state's evidence before the jury further tended to show that, after appellant insisted that he had paid for the automobile in $10 and $20 bills and had never seen 1 $100 bill, he told the police that he had purchased the automobile in Berwyn, Illinois. He also exhibited the bill of sale showing that the purchase was made from the Hi Joe Motor Sales Company at that place on January 28, 1952. The police, thereafter, contacted the Hi Joe Motor Sales Company through the police department at Berwyn to determine the denominations of the currency used by appellant in making the purchase. There was no testimony concerning the information obtained. Thereafter, the police questioned appellant with reference to the information they had obtained. Appellant then stated that he had obtained $4,800 in the robbery of Sam Geller instead of $1,600. He said that he lost about $2,300 "gambling and drinking on the East side over in Illinois"; that he had spent approximately $1,200 for the automobile; and that he bought $750 worth of household goods, clothing and jewelry for his girl friend and himself. He further told the officers were they could recover $350. He said he had given his sister, Ella Reed Dunn, 1010 Liberty Street, East St. Louis, Illinois, three $100 bills to keep for him. At that address Mrs. Dunn's husband delivered to them two $100 bills which he had under the rug in the front of his car. The police then went from the Dunn residence to the residence of Mary Arnell, appellant's girl friend, and she turned over to them a $100 bill. With Mary Arnell they then went to the residence of Ida Gaines, appellant's mother, where Mrs. Gaines turned over $50 in currency. There was evidence that this money was picked up at the direction of appellant; and that the direction or order to do so was given in the presence of appellant's mother and sister and his girl friends, Mary Arnell and Norma Lee Washburn.
As stated, there was evidence that appellant said he had paid out $750 on bills at various stores and for clothing, household goods and jewelry purchased. The police obtained possession of some of the bills for such goods purchased between January 28th and February 1st, and appellant said the purchases were paid for with money obtained in the robbery. On February 6, 1952, at appellant's direction, the police went to his home at 2033a Franklin, where he lived with Norma Lee Washburn. They recovered numerous articles of clothing, a radio, an oil stove and various items of household goods. The articles were exhibited to appellant and he said that the several articles which had been recovered were purchased with the money he had taken from Sam Geller. The State's evidence showed seven prior convictions for felonies, to wit, six convictions for larceny from the person and one for carrying a concealed weapon, and the evidence showed that appellant had been discharged upon lawful compliance with the sentence in each case.
Appellant did not take the stand in his own defense nor offer the testimony of any witness, but contented himself with offering the prosecuting witness' statement to the police on the night of the robbery as shown by the police records, as follows: "Geller reported to special officers Vernaci and Fulhorst that about 7:56 p.m. he was walking north on the west side of North Fifteenth Street when in front of about 1209 North Fifteenth Street he was pushed to the sidewalk by a negro, described on the reverse side of this report, who took from the right front trousers pocket a black leather billfold * * * which contained forty-eight hundred dollars in various denominations and currency; and also took from his left front trouser pocket a billfold containing about thirty-eight dollars and various denominations of currency; and a blue memo book — name and address unknown. Victim stated that he was apparently knocked unconscious, and later upon regaining consciousness he walked to his home. He further stated that he observed this negro man following him when he was at Sixteenth and Cole Street, and the negro following him through Carr Square followed to Fifteenth Street where he was attacked by the negro. He added that he had taken above mentioned amount of currency from his home, when he left for his place of employment at about seven o'clock this a.m., because he was afraid to leave the money at home due to the fact his wife would be absent from home this date. He stated that the he owns numerous parcels of real estate, and keeps money he received from rent from property at his home because he has no faith in banks, and upon accumulating a large sum of money he would then purchase additional property. He can identify this in court."
The description in this report of the person wanted was as follows: "Arrest an unknown negro, brown skin, forty, five feet ten, about two hundred, hair unknown, eyes unknown, wearing a brown topcoat and dark felt hat."
Appellant insists that this description as given to the police department "did not fit the description of Fred Gaines," this appellant. The state, however, was not bound by the description of the robber as originally given to the police. The evidence, as shown by the record in this case, was clearly sufficient to establish the identity of appellant as the offender and to show every element of the crime of robbery in the first degree and the seven prior felony convictions and discharges upon compliance with the sentences. A submissible case was made for the jury and the evidence was sufficient to sustain the conviction for the offense charged in the information. State v. Whitley, 327 Mo. 226, 36 S.W.2d 937; State v. Moulder, Mo.Sup., 57 S.W.2d 1064; State v. Shipley, Mo.Sup., 232 S.W.2d 515. The assignment is overruled.
Appellant next contends that the punishment assessed, to wit, life imprisonment, was the result of passion and prejudice resulting from "the presentation of illegal evidence and inflammatory testimony." Appellant says that the circuit attorney pretended to offer certain bills and receipts received by the police officers from persons other than the defendant, which bills and receipts were "left lying on the table in front of the jury and (were) referred to ever so often by the assistant circuit attorney." The record shows that Exhibit B, which was referred to as containing 15 or 20 slips of paper, was exhibited to officer Martin Moriarty, who (without objection on the part of appellant) testified that the slips were sales slips which appellant said represented articles which he (appellant) or his girl friend had purchased and which he had paid for with "the money" obtained in the robbery. The exhibit was offered and received in evidence without objection but, thereafter, an objection was made to the exhibit "by reason of the means by which it was procured." This objection came too late and was overruled. No error appears from the record with reference to the admission of the exhibit. Whether or not these or other " `bills and receipts' were left lying on the table in front of the jury" or were later referred to does not appear from the record.
Appellant further insists he was prejudiced by the testimony of a police officer to the effect that appellant "said he had served five, six or seven years in the penitentiary." We find no such testimony in the record. Although a question was asked concerning appellant's admissions of prior convictions, it was not answered and the prior convictions were shown by other evidence.
Appellant further says that prejudice was created by the testimony concerning the recovery of money from persons other than the defendant, which money was "purported to have been left there by defendant." Appellant says there was no proof that this money was taken from the prosecuting witness and that "the state at no time presented said money to the jury but on various occasions exhibited said money and referred to said money." The testimony concerning the recovery of the $350 in currency which appellant said he had given his sister came in without objection. And there was subsequent evidence that appellants said that the currency recovered was the remainder of the money he had taken from Mr. Geller. The state's Exhibit A, an envelope, containing $350 in currency, was identified by a witness and, apparently, the currency was exhibited, but without objection on the part of appellant. The exhibit was not offered or received in evidence, at the appellant concedes.
Appellant next refers to the testimony concerning the fact that, after appellant had said he had never seen a $100 bill and had paid for the automobile with tens and twenties, the St. Louis police department contacted the police department of Berwyn, Illinois to find out from the Hi Joe Motor Sales Company what denomination of currency appellant had used in paying for the automobile purchased from them; and that, thereafter, they had questioned appellant and he then admitted he had obtained approximately $4,800 from Geller. No evidence was offered concerning the information obtained from Berwyn, Illinois. Appellant says the testimony was illegal and improper, but the record fails to show any objection on the part of appellant to the introduction of the evidence and appellant may not now complain.
Appellant further says that passion resulted from "the testimony of the broken jaw" and concerning the purchase of clothes. Geller testified without objection that he was struck with a metal instrument and that it broke his jaw. Further, no objection was made to a police officer's testimony that appellant said he spent part of the money for clothing for his girl friend and himself.
If the jury believed and found from the evidence that appellant was guilty of the offense charged against him and that he had previously been convicted of the felonies alleged and that he had been discharged upon the lawful compliance with the sentences in these cases, as apparently they did from the verdict rendered, the punishment assessed was mandatory under the statute. Sec. 556.280. Under the record in this case there is no merit in the contention that the punishment assessed was the result of passion and prejudice resulting from the admission of illegal evidence.
In the second subdivision of the motion for a new trial complaint is made of numerous rulings of the trial court, chiefly with reference to the admission or exclusion of evidence. Appellant contends that by reason of these rulings he was defined a fair and impartial trial under the laws of this state. Only a few of these assignments are set forth with sufficient particularity to comply with the provisions of Sec. 547.030 and our Rule 27.20.
Appellant first complains that the court erred in refusing to strike the answer to a particular question as not responsive and that he was denied a direct answer to the specific question and the prosecuting witness was permitted to evade the question. There is no merit in the assignment because, although the answer given was permitted to stand, the witness was required to and did give a direct answer to the specific question.
Appellant further assigns error on five rulings made in the hearing before the court, outside the presence of the jury, when the trial court was seeking to determine whether the alleged confession by appellant was voluntary and whether or not appellant, before the confession, had been fully advised of his constitutional rights. No issues have been raised on this appeal with reference to the admission in evidence of the alleged confession or of any statement by appellant with reference to his part in the robbery of Geller. The state's evidence before the court tended to show that appellant was fully advised of his constitutional rights; that without coercion, threats or promises he voluntarily made the confession and statements attributed to him; that he was asked if he wanted to make a confession and he said that he did; and that he then stated the facts to the police officers. In this same hearing, as stated, appellant testified that he had never at any time made any oral statement to the police or anyone else implicating himself in the Geller robbery. There is no contention that any confession or any statements were coerced or obtained by improper methods. Since the present appeal in no way involves any action of the trial court as a result of this hearing outside the presence of the jury, the appellant was in nowise prejudiced by the rulings complained of.
Appellant contends that the court erred in sustaining an objection to the form of a question asked the prosecuting witness on cross-examination, as follows: "Do you recognize better without them?" The question actually asked was, "You think your vision is better with them than without them?" Appellant says that he had the right to an answer to impeach the prosecuting witness. The witness, who was 60 years old, testified that he did not "have on glasses the night of the hold-up"; that he had worn glasses for some time, off and on, only when reading; that, when he went out, he put them on sometimes; that they were "plain seeing glasses," not bifocals, that they were "not medically prescribed," but were purchased at a store "that handle glasses", that he used them sometimes and sometimes not at all; that he always left them at the store; that he didn't need them; and that they were not a "must", but purely for decoration. In view of the extensive cross-examination shown by the record by which the facts were fully developed, the appellant could not have been prejudiced by the court's ruling. An answer to the question could have added nothing material to the facts shown. The assignment is overruled.
Appellant complains that the court erred in sustaining an objection to a further question asked the prosecuting witness on cross-examination concerning his reasons for carrying the currency. After the witness had testified fully as to his reasons for having the money with him on the day in question, the witness was again asked, "Why?" Appellant says he was prevented from presenting impeaching evidence before the jury. On objection that the matter had been fully covered and the question was repetitious, the objection was sustained. The court did not abuse its discretion is so ruling. Appellant also complains because the court sustained an objection to the question, "And you didn't have that money to pay any bills?" The objection was sustained on the ground of form. Appellant again says he was prevented from impeaching the prosecuting witness. The prosecuting witness' reasons for having the money and carrying it on his person had been fully developed. Appellant could not have been prejudiced by the court's ruling. Appellant further complains that he was prevented from impeaching the prosecuting witness when the court sustained an objection to the form of a question asked on cross-examination, as follows: "Did you tell the police or did you state on the witness stand that the man who robbed you was about five, ten and a half?" On objection being made, the court said it was a double question and sustained the objection. The witness had previously stated that he could not tell the police the exact height of the robber, but that he gave them "an idea" he was something like five feet, four inches to five feet, six inches tall. He was later asked whether he had testified "the man was five, ten" and he said, "I think five feet, four or six." The record shows that the witness was fully cross-examined with reference to his report to the police. There was no showing as to the actual height of appellant. Geller gave his own height as five feet, two inches and said that the robber was three or four inches taller. No reversible error appears from the court's ruling.
Appellant complains that two different specific questions asked by the state of police officer Moriarty (both to the same effect) were leading and suggestive and that the answers were "fatal to the defendant." The record shows that both questions were asked and answered before any objections were made; and that the information contained in both answers was already fully in the record before the answers were given. The objections were not timely made and no error appears. Appellant could not have been prejudiced.
Other assignments of error in the motion for a new trial present nothing for review because they are either wholly insufficient in that the alleged errors are not set forth in detail and with particularity or else no reasons are assigned as to why the court's rulings are erroneous. Sec. 547.030 RSMo 1949, V.A.M.S.; Supreme Court Rule 27.20; State v. Huddleston, Mo.Supp., 123 S.W.2d 183, 184; State v. Powers, 350 Mo. 942, 169 S.W.2d 377, 378.
We have examined the record proper and find no reversible error.
The judgment is affirmed.
All concur.