State v. Burns
| Decision Date | 12 October 1959 |
| Docket Number | No. 47098,No. 1,47098,1 |
| Citation | 328 S.W.2d 711 |
| Parties | STATE of Missouri, Respondent, v. Robert Emmett BURNS, Appellant |
| Court | Missouri Supreme Court |
William J. Costello, St. Louis, for appellant.
John M. Dalton, Atty. Gen., Robert T. Donnelly, Sp. Asst. Atty. Gen., for respondent.
HOLMAN, Commissioner.
Defendant was charged with the felony of assault, with malice aforethought, under the provisions of Section 559.180 (). He was also charged with eight prior felony convictions. See Section 556.280. A jury found defendant guilty of the offense charged and fixed his punishment at imprisonment in the penitentiary for a term of 75 years, but, as indicated by the stated punishment, he was found 'not guilty' of the prior convictions. Defendant has duly appealed from the ensuing judgment.
Upon this appeal defendant does not challenge the sufficiency of the State's evidence to support the conviction. We will, however, relate such facts as we consider necessary for an understanding of the points briefed.
The Star Novelty Company was engaged in the vending and coin machine business with offices at 4151 Delmar in the City of St. Louis, Missouri. The prosecuting witness, John J. Gazzoli, was an official of the company and occupied an office at the Delmar address. Harry Dorn was general manager of the company.
Mr. Gazzoli testified that at 9 a. m. on March 21, 1958, he was seated at his desk when suddenly the door of his office opened and three masked men appeared, each holding a gun. The first man (later identified as defendant) was about two feet inside the door, another man was in the doorway, and the third was behind him. When Mr. Gazzoli reached for his gun the three men began shooting at him. He was able to get out his gun and fire six shots at the men. The two in the rear ran and escaped. The 'leader' (defendant) 'careened backwards' and fell in the showroom just outside the office door. Gazzoli followed defendant out of the door and struck him on the head with his empty gun. At about this time Harry Dorn came from a rear room and 'belly-flopped' on the defendant. Thereafter, Mr. Dorn got up and 'held a gun on this man' until the police arrived.
Immediately after Mr. Dorn 'took over' Mr. Gazzoli had an employee drive him to a hospital where it was found that he had four bullet holes in his stomach, three holes in one arm, and two 'nicks' on the other arm. An operation was performed and two bullets were removed from his body. A ballistic expert expressed the opinion that both of those bullets had been fired from the gun which defendant had dropped when he fell outside the door of Mr. Gazzoli's office. Defendant received a bullet wound in one of his arms upon the occasion in question.
Defendant did not testify at the trial. The only evidence he offered was the testimony of one witness by whom he sought to impeach the testimony of two of the witnesses offered by the State.
The first point briefed is that the court erred in admitting in evidence certain exhibits entitled 'Certified Transcript of Serial Record.' These exhibits were offered by the State in an effort to comply with the requirements of Section 556.280. They disclosed certain facts relating to the imprisonment of defendant in the Missouri State Penitentiary and his discharge therefrom and were duly certified and sworn to by the warden of the penitentiary. Defendant's contention seems to be that those exhibits were not the best evidence and that proof of the facts shown therein should have been made by producing the original records and having the same identified by the custodian thereof. The contention is without merit. We have repeatedly held that such copies of the records, duly certified by the warden, are admissible in evidence. See State v. Garrison, Mo.Sup., 305 S.W.2d 447, and State v. Peterson, Mo.Sup., 305 S.W.2d 695, and cases cited therein. Moreover, as heretofore stated, the verdict of the jury failed to find any prior conviction of the defendant. In that situation we have recently stated that 'any issue involving prejudicial error in receiving the exhibits in evidence passed out of the case.' State v. Sarkis, Mo.Supp., 313 S.W.2d 723, 727.
The next assignment relates to the alleged bad faith of the assistant circuit attorney in offering proof of eight prior convictions and, in his closing argument, suggesting that the jury disregard the evidence relating to such convictions. Such conduct is said to have deprived defendant of his liberty without due process of law and to have denied him equal protection of the law. It appears to us that this assignment is merely a complaint concerning the alleged prejudicial argument of counsel for the State. We have carefully examined the portion of the argument complained of and find nothing that would constitute error. In substance, the assistant circuit attorney stated that if the jury failed to find that defendant had been priorly convicted the jurors could disregard that evidence but should, nevertheless, assess a long period of imprisonment which he suggested should be 199 years. It was certainly not improper for counsel to argue concerning the duty of the jury in the event it failed to find the required facts relating to the alleged prior convictions. Moreover, we note that no objection was made to the argument now complained of and hence it would appear that the point is not actually before us for review. State v. Nolan,...
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...was certainly sufficient. Various cases hold that such records may be certified by the warden of the appropriate institution. State v. Burns, Mo., 328 S.W.2d 711; State v. Garrison, Mo., 305 S.W.2d 447; State v. Peterson, Mo., 305 S.W.2d 695; State v. Romprey, Mo., 339 S.W.2d 746. An affida......
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