Opinion
No. KCD 27678.
May 3, 1976.
APPEAL FROM THE CIRCUIT COURT, BOONE COUNTY, FRANK CONLEY, J.
William G. Mays, II, Public Defender, Columbia, for appellant.
John C. Danforth, Atty. Gen., Douglas Mooney, Asst. Atty. Gen., Jefferson City, for respondent.
Before TURNAGE, P. J., and WELBORN and HIGGINS, Special Judges.
This appeal follows defendant's conviction by a jury of two counts of first degree robbery and sentence to five years confinement on each count.
On this appeal defendant raises the single argument that his evidence of an alibi, unrebutted by the State, was sufficient to raise a reasonable doubt as to his guilt. The defendant argues from this position the weight of the evidence was not sufficient to sustain the State's burden of proof. Affirmed.
Defendant's argument that undisputed evidence concerning an alibi raises a reasonable doubt as to his guilt is fully answered in State v. Eaton, 504 S.W.2d 12, 16[5-7] (Mo. 1973). There the defendant argued the evidence was insufficient to sustain the conviction because a number of alibi witnesses gave "clear and uncontradicted" evidence the defendant was at another location at the time of the crime. The court stated at 504 S.W.2d 16[5-7]: "This argument assumes the truth of the testimony given by the alibi witnesses, but the jury could believe or disbelieve the alibi testimony."
The court in Eaton further pointed out the defendant's denial of the charge and his production of an alibi defense merely presented an issue of fact for the jury. Further, the court stated a reviewing court does not weigh the evidence, but that is a function reserved to the jury. In this case; the defendant does not question the sufficiency of the State's evidence to sustain the conviction, but rather contends the weight of the State's evidence was not sufficient to overcome the undisputed alibi evidence. This court cannot weigh the evidence. The jury weighed the evidence and found against the defendant. This court cannot disturb that finding.
Judgment affirmed.
All concur.