State v. Brown

• Decision Date: 21 July 1969
• Docket Number: No. 53462,53462
• Citation: 443 S.W.2d 805
• Parties: STATE of Missouri, Respondent, v. Kerry BROWN, Appellant.
• Court: Missouri Supreme Court

Page 805

443 S.W.2d 805

STATE of Missouri, Respondent, v.Kerry BROWN, Appellant.

No. 53462.

Supreme Court of Missouri, En Banc.

July 21, 1969.

Norman H. Anderson, Atty. Gen., Jefferson City, Walter S. Drusch, Jr., Asst Atty. Gen., Cape Girardeau, John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.

Val Terschluse and Lee Platke, St. Louis 1, for appellant.

FINCH, Judge.

Defendant appeals from the judgment of conviction entered against him after a jury found him guilty of assault with intent to kill with malice aforethought and assessed his punishment at forty-five years in the Department of Corrections.We affirm.

The issues raised on this appeal are (1) the method of determining when one reaches his seventeenth birthday, and whether the trial court lacked jurisdiction because the defendant was under seventeen at the time of the alleged offense, (2) the sufficiency of the evidence, (3) whether allowing a police officer to testify from a stretcher was so inflammatory and prejudicial as to deny defendant a fair trial, (4) whether failure of the court, on its own initiative, to have the jury locked up during the trial prejudiced the defendant, and (5) the timeliness and propriety of an instruction informing the jury that if they agreed on guilt but not on punishment, they might return a verdict of guilty, in which event the court would fix the punishment.

The first issue presented is whether the court had jurisdiction of the defendant.A motion to dismiss was filed in the trial court stating that the circuit court lacked jurisdiction because defendant was not yet seventeen years of age at the time of the occurrence for which he was prosecuted.Section 211.031, RSMo 1959, V.A.M.S., provides that the juvenile court shall have exclusive original jurisdiction of a minor alleged to have violated a law 'prior to having become seventeen years of age'.Since the defendant was born on February 25, 1950, at 6:32 p.m. and the crime for which he was prosecuted occurred on February 25, 1967, at 4:30 p.m., the question as to when he legally became seventeen years of age is presented.

Defendant asserts that the proper mode of computing his age in determining the applicability of the Juvenile Code is by hours rather than by days, and that he did not attain the age of seventeen years until 6:32 p.m. on the 25th day of February, 1967.Defendant cites no cases which support his contention.

Defendant's theory is contrary to two established rules of the common law which, in the absence of constitutional or statutory provisions to the contrary, are applicable in Missouri.Section 1.010, RSMo 1959, V.A.M.S.

In the first place, as a general rule, the law does not consider fractions of a day.Williams v. Williams, 325 Mo. 963, 30 S.W.2d 69.While exceptions to this rule have been made by various courts, most relate to situations where the two acts occur on the same day, such as priorities of liens or deeds filed on the same day.As to computation of a person's age, the same contention as defendant here makes was made in the early case (1633) of Herbert v. Turball, 1 Keble 590, 83 Eng.Reprint 1129, 1 Sid 162, 82 Eng.Reprint 1033, and the court stated: '* * * and whatever hour he was born is not material, there being no fraction of days.'No cases to the contrary have been found.

A second rule of the common law contrary to defendant's theory is the rule that a person reaches his next year in age at the first moment of the day prior to the anniversary of his birth.Nichols v. Ramsel, (1677)2 Mod. 280, 86 Eng.Reprint 1072;Nelson v. Sandkamp, 227 Minn. 177, 34 N.W.2d 640, 5 A.L.R.2d 1136;Commonwealth v. Howe, 35 Pa.Super. 554;andLenhart v. State, 33 Tex.Cr.R. 504, 27 S.W. 260.See also Annotation: 5 A.L.R.2d 1143.It may be noted that this rule does not follow the general rule of common law for the computation of time, which was to exclude the first day and include the last.This exception has been followed for such a long period of time that it has achieved a status of its own and should be followed in the absence of a statutory enactment to the contrary.The only case we have found, where no statute is involved, expressing a contrary view is People v. Stevenson, 17 N.Y.2d 682, 269 N.Y.S.2d 458, 216 N.E.2d 615.This case, however, does not support defendant's contention in this case for its holding would be that defendant reached seventeen years of age on the first moment of February 25, 1967.It is not support for the contention that defendant did not become seventeen until 6:32 p.m. on that date.Accordingly, we overrule the contention that the trial court did not have jurisdiction of this defendant.

Defendant's second contention is that the verdict was against the weight of the credible evidence and the trial court should have set aside the verdict and directed a judgment of acquittal.

The evidence showed that on the 25th day of February, 1967, at about 4:30 p.m., a man entered a jewelry store owned by William Simpkinsat 5927 Easton in St. Louis.He held a .38 kcaliber revolver in his hand and announced a holdup.Also present in the store was Conrad Rodgers, a police office off duty, Henry Levin, manager of a neighboring store, and Lloyd Fiehler, an accountant, who was working on the books of the store.

Simpkins, who was seated at a watchmaker's bench in the back of the store, fell onto a burglar alarm on the floor.The robber, identified by Rodgers, Levin and Fiehler as Kerry Brown, then reached over the counter and shot Simpkins in the neck.There was an exchange of gunfire between Officer Rodgers and the holdup man, both of whom received serious injuries.

The man left the store and was observed entering a certain type of automobile near the jewelry store.The defendant was seen to enter the same car when he left a doctor's office a few minutes later.A police officer stopped the same car within one hour after the assault, found the defendant in the car suffering from bullet wounds and took him to the hospital.The defendant denied being present at the jewelry store at the time of the assault.He testified that he had received his gunshot wounds in a fight with his brother.

There was sufficient evidence to support the verdict of the jury.

Defendant's third contention is that the action of the trial court in allowing Officer Rodgers to be brought into court on a stretcher and to testify therefrom 'was so inflammatory as to deprive the jury of objectivity to the prejudice of the defedant'.

When the trial started, the assistant circuit attorney advised the judge and counsel for defendant that Officer Rodgers would be brought to court on a stretcher and that his doctor wanted a nurse to remain nearby in case he should become ill.Counsel for defendant objected on the basis that this would tend to limit vigorous cross-examination, if necessary, and that the officer's appearance on a stretcher would be inflammatory and would prejudice the jury against defendant.This objection was overruled.Subsequently, during Rodgers' direct testimony, counsel for defendant, out of the hearing of the jury, moved for a mistrial on the basis that tears had appeared in Rodgers' eyes and that this would elicit sympathy of the jury for Rodgers and be prejudicial to the defendant.The request for a mistrial was denied.

These objections relate to an area in which the trial court necessarily has considerable discretion.He could observe at first hand whether the fact that Officer Rodgers was on a stretcher unduly and unfairly prejudiced the jury against the defendant.He condluded that it did not, and also decided that the fact that tears appeared in Rodgers' eyes during his testimony was not a basis for the declaration of a mistrial.These questions were raised again by defendant's motion for new trial.Again, the trial court declined to give relief, and we cannot say that he was wrong or that he abused his discretion.The trial court was present and was in a much better position to judge these matters than are we on the basis of the record presented to us on appeal.

Defendant urges that the State is not compelled to call all witnesses who may have witnessed a homicide, and apparently contends that fundamental fairness would have required the State to rely on other eyewitnesses and not call Officer Rodgers.We cannot agree.Defendant was asserting an alibi and was challenging the sufficiency of the identification of him at the scene of the crime.He urged in the trial court, and again on appeal, that there should have been a directed verdict of acquittal on account of insufficient identification.Under such circumstances, he cannot contend that the testimony of Officer Rodgers was merely cumulative and hence unnecessary.Furthermore, the defendant himself, according to the evidence, had shot Rodgers and created the physical condition which made it necessary for Rodgers to be brought to court on a stretcher.It would be anomalous indeed to say that because of that physical condition the witness could not be used by the State in the trial of the defendant on the charge of committing that very offense.

In his motion for new trialdefendant also contended that it was unnecessary for the State to bring Rodgers to court on a stretcher and that this was done solely to influence the jury.A hearing was conducted on this allegation, at which defendant introduced three photographs of the defendant.One, dated July 19, 1967, shows Officer Rodgers in a chair at his home with his wife and two children.He is holding a Jaycee award.Another, dated September 19, 1967, shows him on a stretcher before being taken into the courtroom to testify.The third one, dated September 21, 1967, shows Rodgers in a wheelchair receiving a Distinguished Service Citation from the St. Louis Police Department.These photographs had appeared in issues of the St. Louis Globe-Democrat dated August...