State v. Cook

• Decision Date: 08 March 1971
• Docket Number: No. 55399,No. 1,55399,1
• Citation: 463 S.W.2d 863
• Parties: STATE of Missouri, Respondent, v. Samuel J. COOK, Appellant
• Court: Missouri Supreme Court

Page 863

463 S.W.2d 863

STATE of Missouri, Respondent, v. Samuel J. COOK, Appellant.

No. 55399.

Supreme Court of Missouri, Division No. 1.

March 8, 1971.

John C. Danforth, Atty. Gen., J. Michael Jarrard, Asst. Atty. Gen., Jefferson City, for respondent.

J. E. Sigoloff, St. Louis, for appellant.

HOUSER, Commissioner.

Samuel J. Cook, charged under the Second Offender Act with a prior felony and with assault with intent to do great bodily harm with malice under § 559.180, ¹ was found guilty of the latter charge by a jury and was found guilty of the prior felony by the trial judge. The court fixed his sentence at 15 years' imprisonment. On appeal he is represented by the same court-appointed counsel who defended him in the trial court.

Questions as to the sufficiency of the information, identification evidence and an instruction are raised on this appeal. A further question involves accused's right to have the jury, rather than the judge, fix the punishment, appellant claiming that the evidence was insufficient to sustain the court's finding upon the basis of which the Second Offender Act was invoked.

I. The Information

The first question is whether the failure of the State to state the year in which the assault occurred (the information merely alleged that appellant made the assault 'on the 23rd day of May') was sufficient or whether the information was thereby rendered fatally defective. Time is not of the essence of the offense of assault with intent to do great bodily harm with malice, and because of the statute of jeofails and the applicable rule of this Court the information is not to be deemed invalid and the judgment of conviction is not to be reversed for this omission. ² Citing Ex Parte Sydnor, 222 Mo.App. 798, 10 S.W.2d 63, appellant argues that the failure to allege the year in which the alleged offense took place renders the information fatally defective because it does not establish that the offense occurred within three years of the date of filing the information. ³ In Ex Parte Sydnor the St. Louis Court of Appeals held that an information must always state that the crime was committed within the period of the statute of limitations, and discharged the petitioner from custody in a habeas corpus proceeding. Ex Parte Sydnor, however, was specifically overruled by the Supreme Court en banc in Honey v. Kaiser, Warden, 352 Mo. 1120, 181 S.W.2d 492, for the reason that the decision failed to give effect to our statute of jeofails (now § 545.030 ². See State v. Caviness, 326 Mo. 992, 33 S.W.2d 940; State v. Pigg, 312 Mo. 212, 278 S.W. 1030, 1034; State v. Fields, 262 Mo. 158, 170 S.W. 1132, 1134(2); State v. Stumbo, 26 Mo. 306, and State v. Pratt, 98 Mo. 482, 11 S.W. 977; 42 C.J.S. Indictments and Informations, § 124, p. 1006.

In his brief appellant also claims that the omission violates his constitutional rights, under Article I, §§ 10 and 17 of the state constitution, V.A.M.S. and under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, but he does not enlarge upon this general claim, fails to suggest in what respect his constitutional rights have been infringed, and cites no authorities in support of his claim. It is not the duty or function of this Court to construct a constitutional defense for appellant.

II. The Identification Evidence

The next question is whether the evidence established accused's connection with the crime beyond a reasonable doubt, appellant contending that the evidence identifying appellant as the perpetrator of the assault was insufficient as a matter of law. The specific charge was assault upon Gus Lombardo with intent to do great bodily harm with malice, by shooting him with a pistol. Lombardo was shot in the right elbow after having been served as a customer at a barbecue stand. Lombardo testified as follows: There was 'another person walking around' in the place while Lombardo was purchasing a slab of ribs. He was a man who had on a red shirt and an orange and brown sweater and a dark pair of trousers. Lombardo pointed appellant out during the trial as the man he saw wearing the red shirt and orange and brown sweater. Lombardo had never seen the man before. There was a new Mercury vapor light--a street light--outside the barbecue stand and the lighting conditions outside were good. When Lombardo walked out of the place he saw the accused, the only man on the street at the time (about 2 a.m.), wearing the above-described clothes. Cook was 'standing there straddle-legged,' with his legs apart and his arms crossed, with a pistol in his right hand. Cook said, 'Come here, I want to talk to you * * * Give me what you got.' Lombardo turned around, started back into the door to the barbecue stand, tripped and while Lombardo was falling to the ground Cook took aim and shot Lombardo in the right elbow. On the question of opportunity to observe Cook, Lombardo testified that it took about ten minutes after ordering the food before it was served to him; that during that time Cook was walking back and forth in the place, a distance of from 3--5 feet away from Lombardo; that the man was 20 or 21 years old. Appellant stresses the following cross-examination: 'Q Did he have any unusual facial characteristics? A I didn't pay too much attention. Q. So actually you are not identifying him because of his face? A Well, more so by the clothes. Q You mean the clothes is what you are basing your identification on? A Partly. Q Mostly, or 'more so,' you said, isn't that correct? A Yes, sir. Q In other words, if you didn't have the clothes to base your identification on you would not be able to identiy him? A I think I would. Q You are not sure, though? A All I know is, I seen that gun. Q All you saw was the gun? A Yes, sir. Q So really, you can't identify this man except from the clothes? A From the clothes, yes, sir.'

Earl McCrary, owner of the barbecue stand, testified that Lombardo ordered a slab of ribs; that there was a fellow in the store wearing an orange buff striped jersey and dark pants, with a white or red shirt under the sweater; that he had seen the man before; that the man who was walking around the store was the defendant Cook seated in the courtroom; that he knew Cook by face, having seen him around the store previously; that after Lombardo got his ribs and was leaving, McCrary walked with Lombardo toward the door, talking with him; that McCrary was standing by the window when Lombardo finally went out of the store; that as Lombardo was going out Cook, the one wearing the orange and brown striped sweater, said 'This is it'; that Lombardo said 'I ain't got nothing' and turned to reenter the store. McCrary saw fire come from the gun. McCrary asked Lombardo if he was hit and after receiving an affirmative answer McCrary got a pistol out of his own pocket and shot at the retreating man. McCrary did not know whether he hit the man, who kept going. This exchange took place: 'Q Mr. McCrary, is there any question in your mind that the man sitting over here, Mr. Cook, is the man who shot Gus Lombardo? A No; he is the man. Q Is your identification based just on the orange and brown * * * sweater that he was wearing? A No; I am positive I seen him out there. Q Could you identify him by his face? A Yes. Q Mr. McCrary, I will show you that which is marked State's Exhibit No. 3; can you identify Exhibit No. 3? A That is the jacket Q That is the jacket he had on at the time? A Yes. Q For the record, when you say 'he,' you mean Mr. Cook? A I mean Mr. Cook, yes.' On cross-examination Mr. McCrary testified that he had seen Cook 'Up and down Vandeventer' and around there, and the following transpired: 'Q Now, are you identifying him based upon the clothes that were shown you, rather than on his facial characteristics? A By his face, he had a goatee on that night, a beard; he was bareheaded, and his hair wasn't short, and I wouldn't call it real long, but it wasn't short. Q In other words the person you saw had a goatee on? A One of them beards--Q (Interrupting) Yes, a goatee? A Yes. Q He doesn't have one now? Mr. Frank: Just a minute, will you move over--Q (By Mr. Sigoloff, interrupting) Oh, he does. I am sorry. Are you basing it upon the goatee? A No, I base it on because I seen him.'

Detective Robert LaGrand, patroling the area with another officer, heard two shots fired, went to the barbecue stand, found Lombardo who was wounded. Lombardo gave the detective a description of the man who shot him. The detective's partner went to the patrol car and 'put out the description.' The detective saw Cook some time that morning. Cook was wearing a red shirt, dark trousers and dark shoes. The T-shirt had fresh blood on it and there was a hole in the shirt.

Police Officer Charles Kerlagon testified that an all-channel broadcast came out about 2 o'clock on the morning in question; that he took into custody a negro male named Samuel Cook, who had been shot; that he had on a dark pair of trousers, a red jersey on top of a T-shirt; that on a cot nearby there was an orange and brown striped sweater. He identified State's Exhibit No. 2 as the T-shirt and No. 3 as the sweater.

The foregoing evidence constitutes substantial evidence identifying appellant as the perpetrator of the crime, from which the jury could reasonably have found, beyond a reasonable doubt, that Samuel J. Cook assaulted Lombardo with intent to do great bodily harm with malice by firing a pistol at and striking him.

II. Instruction No. 3

Instruction No. 3 was intended to submit assault with intent to do great bodily harm without malice aforethought. By inadvertence the introductory paragraph mistakenly employed the word 'with' instead of 'without,' as follows: 'If you find the defendant, Samuel J. Cook, not guilty of an assault with intent to do great bodily harm with malice aforethought, under the foregoing instructions, then you will consider whether or not, under all the facts and circumstances in...