State v. Booker, 54623
| Decision Date | 08 June 1970 |
| Docket Number | No. 54623,No. 2,54623,2 |
| Citation | 454 S.W.2d 927 |
| Parties | STATE of Missouri, Respondent, v. Joe Raymond BOOKER, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., for respondent.
Jerry S. Estes, Scott City, for appellant.
STOCKARD, Commissioner.
Defendant Joe Raymond Booker and Benjamin Henry Ward were charged by information with robbery by means of deadly and dangerous weapon. At defendant's request a severance was granted. Subsequently an amended information was filed, in which defendant alone was named, charging the same offense under the habitual criminal act. The trial court held the proof of the previous conviction charged in the amended information to be insufficient. The jury found defendant guilty and fixed the punishment at imprisonment for a term of twenty-five years.
From the evidence presented by the State, the jury reasonably could have found the occurrence of the following events.
About 9:30 o'clock in the morning of April 23, 1968, defendant and Benjamin Henry Ward entered a store owned and operated by Mr. V. S. 'Jack' Stephens located a few miles north of Sikeston, Missouri. Ward carried a sawed-off shotgun and defendant carried a long wrench handle. Ward struck Mr. Stephens with the shotgun and dragged him behind the counter of the store and held the shotgun on him. Defendant made Mrs. Stephens open the cash register. He took the money from it and also $25 from her purse. Defendant also took a German automatic pistol and a .22 caliber pistol. Defendant then demanded the keys to the Stephens automobile, a 1962 White Chevrolet, and drove away in it on Highway 61 headed east. Neither Mr. nor Mrs. Stephens saw another automobile. That morning Mr. Isaac Tate saw Ward, whom he knew, driving a red 1965 Plymouth on Highway 61 north of Sikeston. About one-half mile behind it was a 1962 White Chevrolet, subsequently identified as the Stephens automobile, being driven by a colored person, but Mr. Tate did not recognize him. After the Chevrolet passed Mr. Tate, he saw it turn over at a curve in the road, and he saw the driver of the Chevrolet run to the Plymouth and get in it.
Pursuant to a radio message, Highway Patrolman Robert G. Mouser stopped a 1965 Plymouth, described as maroon in color, near Perryville, Missouri which was being driven by Ward and in which defendant was a passenger. Both Ward and defendant were subsequently placed under arrest. The automobile was searched and found therein was a double-barreled sawed-off shotgun, the German automatic pistol and the .22 caliber pistol which had been taken at the time of the robbery, $165.95 in cash contained in a cloth glove, four shotgun shells, and a cloth satchel containing some grease paint, some long strands of hair, and some paint remover. The guns and the money were under the 'console' in the front seat.
Defendant did not testify, but he called as his only witness Benjamin Henry Ward. He testified that the Plymouth belonged to him and that he and defendant left St. Louis early in the morning of April 23, 1968, and drove to Cape Girardeau. They had approximately $160 between them which they placed in the 'console' of his automobile for safe keeping. At Cape Girardeau they picked up two soldiers and took them to Sikeston to catch a bus and were paid $10. They then drove to an overpass near Benton, Missouri where they had some car trouble. While they were working on the automobile two colored persons in a 1963 red Plymouth stopped to help. Those two persons offered to sell, and Ward purchased, the shotgun and the two pistols which were later found in his automobile.
Prior to trial defendant filed a motion to suppress as evidence the items taken from the automobile on the grounds that the search and seizure were made without a warrant, that no crime had been committed in the presence of the arresting officer, and there was no probable cause for the arrest. An evidentiary hearing was held in which defendant called Patrolman Mouser as a witness and the facts and circumstances of the arrest and search were developed in detail, but in view of defendant's contention on this appeal we need not set out the evidence, except to say that neither defendant nor Ward testified at that hearing. The motion to suppress was overruled, and when the items which had been seized from the Plymouth automobile were offered in evidence at the trial defendant did not object on the basis set forth in his motion to suppress. In defendant's motion for new trial there is no assignment of error that the trial court erred in overruling the motion to suppress filed by defendant in this case, and there is no assignment of error that the items were erroneously admitted in evidence. Instead, defendant's assignment of error, which we set out verbatim because of its unusual nature, was as follows: 'Trial court committed error in not sustaining the Motion to Suppress which was heretofore filed in Case No. 6805, State of Missouri vs. Benjamin H. Ward; that in light of such error, State's Exhibit 4 (a jury list), 5 (a photograph of Ward), 6 (the German automatic), 7 (the .22 caliber pistol), 8 (the sawed-off shotgun), and 9 (the wrench handle) were not admissible in evidence due to the illegal search and seizure in violation of Rule 33 of the Rules of Criminal Procedure in Section 14 of Article 1 of the Constitution of Missouri and the Fourteenth Amendment of the Constitution of the United States.' We first note that Exhibits 4, 5 and 9 were not obtained as the result of a search of the Plymouth automobile. The wrench handle was abandoned by the robbers at the scene of the crime. Next, although the transcript does not show that the evidence...
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State v. Ross, 57351
...in this situation would probably employ language leading to a finding that defendant acted 'alone or in concert,' State v. Booker, 454 S.W.2d 927 (Mo.1970); however, he has not demonstrated how he was prejudiced by omission of such language from the instructions in this Appellant charges (V......
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State v. McDaris, 55398
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