State v. Burns

• Decision Date: 13 June 1955
• Docket Number: No. 2,No. 44497,44497,2
• Citation: State v. Burns, 280 S.W.2d 119 (Mo. 1955)
• Parties: STATE of Missouri, Respondent, v. Robert Emmett BURNS, Appellant
• Court: Missouri Supreme Court

Page 119

280 S.W.2d 119

STATE of Missouri, Respondent, v. Robert Emmett BURNS, Appellant.

No. 44497.

Supreme Court of Missouri, Division No. 2.

June 13, 1955.

Morris A. Shenker, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Winston Cook, Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

This is an appeal by Robert E. Burns from a judgment imposing a sentence of five years imprisonment for robbery in the first degree by means of a dangerous and deadly weapon. Sections 560.120, 560.135 RSMo 1949, V.A.M.S. He contends error occurred in unduly restricting his counsel's cross-examination of witnesses, in admitting certain testimony, in the argument of the State's attorney, in giving the State's main instruction, and in not instructing that the verdict of the jury must be unanimous.

Paul Blumenthal owned and operated a drugstore at 3201 Ivanhoe street, being the southwest corner of Ivanhoe and Scanlan streets, in the city of St. Louis, Missouri. The store is about 30 feet wide and extends about 60 feet back from the street. He operated a soda fountain about midway of the depth of the store, and a prescription department at the rear of the store. There was a cash register near the fountain and a safe in the prescription department.

About 7:15 p. m. February 3, 1953, two men with guns in their hands and masked with handkerchiefs over the lower part of their faces, entered the store, stated it was a holdup, and forced the customers over toward the cash register and then to the rear of the store.

The men did not wear hats. One had dark hair and wore a blue coat, a Navy pea jacket. The other had brown, light brown hair and wore a topcoat. Some of the witnesses described his coat as gray, light gray in color; others as gray or tan, gray-tan, between a gray and a tan.

The dark haired man went to the prescription department and had Blumenthal open the safe and get a box containing money from a drawer in the prescription department. In the course of the robbery he shoved the gun in Blumenthal's ribs, told Blumenthal to be 'damned quick,' and 'Now, I want all of it.' The other robber ordered Russell Feldman, a high school student and part-time clerk in the drugstore, to open the cash register. Feldman had trouble opening the register. Katherine Ribaudo, a customer in the store, upon hearing the robber talking loud to Feldman, looked in that direction and while she was looking the handkerchief slipped down from the robber's face. After about a minute she turned her face to the wall again. Feldman, upon being told, went back to the prescription department and, after that, the robber in the front of the store took the money out of the register.

August Pouse operated a filling station at the northwest corner of the intersection. He noticed three men loitering near the drugstore entrance that evening. He looked away and a short time later only two of the men remained. They were 45 to 50 feet from him and he could readily see them by the street lights and the lights of the drugstore. They were without hats and unmasked. The man with the topcoat was facing him and he saw his face for a total of about four or five minutes; but the man with the Navy pea jacket was keeping his back to the filling station. He observed them off and on for about ten minutes. He did not see one of the men enter the drugstore but saw the man with the topcoat enter with long strides. While the two men were in the drugstore a dark colored automobile drove up in front and waited with the engine running. The two men came out, got in the automobile, and it was driven east on Scanlan at a fast speed.

The robbers were in the drugstore five minutes or more. They took about $700 in currency.

On separate occasions during the first part of April, 1953, Russell Feldman, Katherine Ribaudo and August Pouse identified the defendant at a police station 'show up' room as the robber wearing the topcoat, as they also did at the trial.

The defendant offered no witness.

For his first point defendant states, in general terms, that 'the court erred in its continuous restriction of defendant's cross-examination of State's witnesses,' depriving defendant of his constitutional right, Art. I, Sec. 18(a), V.A.M.S.Const., of confrontation and cross-examination of witnesses appearing against him. Consult Rule 1.08(a)(3) 42 V.A.M.S. Defendant's argument refers to seven instances during the progress of the trial wherein objections were sustained to questions asked the State's witnesses. The State does not question the general rule thus presented; but contends that defendant's right of cross-examination was not improperly restricted by the court and points out that neither in defendant's point nor in his argument does he develop that the questions asked were proper or that he was prejudiced by the court's action. These essential prerequisites to reversible error are apparently assumed to have occurred by defendant.

Examining each of the instances referred to in defendant's argument and ruling defendant's point in general terms, we fail to find that the court continuously or unduly restricted defendant's cross-examination. Illustrative of the incidents mentioned in defendant's argument are:

Witness Pouse identified defendant as the robber with the lighter hair and a topcoat. He testified during the course of his cross-examination that this man was about 5 feet 10 or 11 inches tall; and that his, witness's, height was 6 feet 1 1/2 inches. The court sustained an objection to the next question, whether said man 'was slightly less in height than you,' stating: 'It's matter for the jury, they have heard the figures.'

Geneva Strickland, a customer in the store, testified on direct and on cross-examination that defendant's topcoat 'was between a gray and tan; it was one of the lighter shades; I couldn't tell you exactly the shade of it.' Then followed: 'Q. But you can't say then whether it was a tan topcoat or a gray topcoat, is that true?' The court, upon objection, stated the witness had theretofore answered the question but he would permit her to describe the coat again. The witness again described the coat as before, stating 'I couldn't tell you the exact color.'

As stated, the robbery occurred February 3, 1953, and the State's witnesses identified defendant at the police station the first part of April, 1953. Katherine Ribaudo, a customer in the store, testified the robbery occurred on April 3rd, stating 'I don't remember distinctly. I am almost sure it's April 3rd.' Witness was next asked: 'Q. You remember distinctly it was April 3rd.' An objection that the question misquoted the witness was sustained. She had just testified she did not distinctly remember the date.

A reading of the transcript discloses that the court permitted defendant's counsel, as stated in defendant's brief, to 'vigorously cross-examine' the State's witnesses. Some of the fact issues involved in the instances mentioned in defendant's argument were of such trivial or minor importance as not to affect the results. It appears from the record that defendant received in the instances mentioned in his argument the benefit of the witness's imformation on the fact involved. No substantial right of cross-examination was denied defendant and defendant has not established prejudicial error. 24 C.J.S., Criminal Law, Sec. 1914, a(2), and c, page 931; Sec. 1948, b, (2)(d), page 1103.

State's witness Guy Livingston, a member of the police force, first testified concerning the arrest of defendant and was then asked:

'Q. Did you do anything else outside of assisting in the arrest in this case, Officer? A. I was present on two identifications.

'Q. You referred to these two identifications. When was the first one you referred to?

'Mr. Doberstein: Just a minute. I am going to object to the remark by counsel, ask it be stricken and counsel admonished; it's a violation of the constitutional rights of this defendant, if the court please; it's a conclusion.

'The Court: I am going to overrule the objection, Mr. Doberstein, in view of the previous answer made by the witness, to which there was no objection.

'Mr. Doberstein: I will object to the previous answer and ask that that be stricken on the same grounds.'

This was overruled by the court, the court stating the answer was clear and distinct and the objection was too late.

Counsel first objected to the remarks of the State's attorney: 'You refer to these two identifications.' The witness's answer was clear, and the court's ruling that defendant's objection thereto and motion to strike were not timely may be sustained by the record. State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877, 880; State v. Gaines, Mo., 261 S.W.2d 119, 126; 23 C.J.S., Criminal Law, Secs. 1060, 1071, 1078, page 473. Furthermore, prior to witness Livingston taking the stand, witnesses who were at the scene of the robbery were examined and cross-examined respecting their identification of defendant after his arrest in a 'show up' room. In the circumstances the witness's answer that he was present...