State v. Barnes
| Decision Date | 10 April 1961 |
| Docket Number | No. 1,No. 48277,48277,1 |
| Parties | STATE of Missouri, Respondent, v. Eugene Joseph BARNES, Appellant |
| Court | Missouri Supreme Court |
Richard L. Daly, St. Louis, for appellant.
John M. Dalton, Atty.Gen., W. H. Bates, Special Asst. Atty. Gen., for respondent.
Defendant was charged with robbery in the first degree with a dangerous and deadly weapon under the Habitual Criminal Act, seven prior felony convictions were alleged. See Secs. 556.280, 561.120 and 560.135 RSMo 1959, V.A.M.S. On trial, a jury returned a verdict of guilty and the court assessed the punishment at 17 years' imprisonment in the State Penitentiary. Defendant was represented by court appointed counsel and he was permitted to appeal as a poor person and a free transcript was provided. No brief has been filed in this Court on his behalf and we shall review the assignments of error set forth in his motion for a new trial.
On February 23, 1960, at about 12:15 a. m., William Slay was in a package liquor store, which he owned and operated at 4217 West Easton Avenue in the City of St. Louis. He was in the store alone when a person, later identified as defendant and hereinafter so referred to, entered and ordered a fifth of wine. When it was set out and the price stated, the defendant presented a gun and said, 'This is it man, hand it over.' When Slay saw the gun, he was frightened and handed over his money, $35 from the cash register. It was in bills and change. When defendant held out his left hand to take the money, Slay observed that it was bleeding. Slay only saw the barrel of the nickel-plated gun and observed that defendant was about five feet eleven inches in height, weighed about 180 pounds, had a scar on the left side of his face and wore a grey overcoat and a dark cap. Before leaving, defendant required Slay to lie down on the floor, but as soon as defendant left the store, Slay got up and looked out in time to see defendant cross Easton Avenue and go through a gangway, going south.
Slay immediately called the police and gave a description of the robber. Within twenty minutes after the robbery, the police brought a man to Slay's Liquor Store. Slay testified at the trial that the man brought in was the man who held the pistol on him and took his money. He identified the defendant on trial as that man. Slay also identified the gun, the cap and the overcoat. 'Looks like the gun he had in his hand' and like the coat and cap the man was wearing.
Two police officers of the City of St. Louis, members of the mobile reserve unit, testified that about 12:15 a. m., February 23, 1960, they were in a police car near St. Ferdinand and Newstead and received a 'rodio call describing a man wanted for holdup.' They immediately began a search of the area around Finney and Pendleton, where they observed a man in a liquor store at 4269 West Finney. They went into the store and observed that the man 'was a colored male about thirty years old and he was wearing a grey overcoat, a brown cap and both hands were bleeding.' They also observed an ivory-handled revolver sticking from his right coat pocket. They arrested and disarmed him. The arrest was made about four blocks south of Slay's Liquor Store. The gun, a .38 caliber chrome-plated, five-shot revolver, contained four cartridges. They felt money in the man's coat pockets, but did not remove it at that time. The man was immediately taken to Slay's Liquor Store and into Slay's presence and some of the money was taken out of the man's pockets and put in a bag, but all the money was not removed at that time. From Slay's store the man was taken immediately to police headquarters where he was searched. The police officers found a total of $51 in currency and change in the man's right overcoat pocket and $17 in currency and change in his left overcoat pocket. The change was in halves, quarters, nickels and dimes. The man arrested was the defendant on trial. Defendant offered no evidence.
In his motion for a new trial defendant assigned error on the court's action in overruling his objections and allowing each of the police officers, Brown and Carraway, 'to testify that he received a radio communication in which he received a description of a man wanted for a robbery and that shortly afterwards he saw the defendant and that the defendant fit the description of the man wanted, as broadcast in the radio communication, and that he then arrested the defendant.'
There is no testimony in the record to support the statement that either witness was permitted to testify 'that the defendant fit the description of the man wanted, as broadcast in the radio communication', or as to what description was broadcast over the radio.
As to witness Brown, the record shows:
'
'Mr. Daly: Of course, I object to this as hearsay.
'The Court: He can tell us whether or not he received a radio call; don't go into any description.
It will be noted that the question did not call for the answer given and that the objection did not include a motion to strike and so the answer remained in the record. The witness, however, had not given any inadmissible testimony. The fact that the witness said he had heard a radio broadcast was not hearsay. The testimony as to having heard such a broadcast tended to explain the subsequent conduct of the witnesses and was properly admissible. State v. Sarkis, Mo.Sup., 313 S.W.2d 723, 726(4); State v. Bright, Mo.Sup., 269 S.W.2d 615, 623(11); State v. Golden, 353 Mo. 585, 183 S.W.2d 109, 116(14, 15); Manz v. Commonwealth, Ky., 257 S.W.2d 581, 582(2); Trotter v. State, 215 Ark. 121, 219 S.W.2d 636, 638; 22 C.J.S. Criminal Law Sec. 718, p. 1229. The description given over the radio was excluded by the trial court's order. No error appears from this record.
As to witness Carraway, the record shows:
'Mr. Daly: Of course, I object to that and ask it be stricken and the jury instructed to disregard it and a mistrial be declared.
'The Court: That is all.
'Mr. Daly: I object to this question as it is obviously an attempt to do something by indirection he can't do directly, making it obvious it was a radio report----
* * *
* * *
'The Court: Go ahead.
It will be noted that the first question did not call for any improper evidence; and that, after it was answered, no ground for the objection was stated. The specific relief asked was not granted, but no ground was assigned for requesting it. In such a case the applicable rule is well stated...
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