State v. Craig
| Decision Date | 12 November 1968 |
| Docket Number | No. 53515,No. 2,53515,2 |
| Parties | STATE of Missouri, (Plaintiff) Respondent, v. Delmar F. CRAIG, (Defendant) Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Michael P. Riley, Special Asst. Asst. Atty. Gen., Jefferson City, for respondent.
Dewey S. Godfrey, Jr., St. Louis, for appellant.
The defendant was charged under the Habitual Criminal Act with the offense of attempted robbery first degree in violation of Sections 560.120 and 556.150, RSMo 1959, V.A.M.S. After the Court's finding a prior felony conviction relative thereto and a jury verdict of guilty, defendant was sentenced to imprisonment for a term of six years.
Defendant does not challenge the sufficiency of the evidence to support the sentence but assigns as error on this appeal two grounds which he claims entitle him to relief from the conviction. The first assignment relates to the Court's refusal to grant a mistrial when the State's police witness, in referring to his investigation, used the words 'victims', 'holdup' and 'holdup man' to describe the event and the persons involved, while the second deals with the Court's failure to instruct on the charge of common assault, a misdemeanor and claimed lesser and included offense.
Summarized sufficiently to consider these points, the facts show that on the evening of February 6, 1967, about 8:00 P.M., James Reavis and Francis Huskey were on duty at the Clark Service Station located at 4206 South Grand in the City of St. Louis. Defendant walked onto the lot, went to the rest room and after Reavis and Huskey finished waiting on customers, followed them into the office and stated: 'This is a holdup'. He had his left hand in his coat pocket and raised it somewhat as though he had a weapon concealed therein. Simultaneously, two vehicles pulled into the gas station and, when Huskey attempted to leave the office to wait on the customers, defendant obstructed his exit. However, he relented for fear of arousing suspicion and allowed the attendants to wait on the customers. While Reavis and Huskey were still outside in the vicinity of the gas pumps, defendant walked over to Reavis, who was standing near Huskey at the time and said, 'All right, buddy, you have had it' and raised his hand in his pocket again. At this juncture Huskey withdrew the gas hose from the tank of the automobile he was filling and squirted gas in the defendant's face. The two began to secuffle and continued to do so until Reavis, who had obtained a shotgun from the service station, shot defendant. Thereafter defendant staggered from the premises and later was found in an injured condition on the porch of a house nearby. Money was kept by the attendants in their shirt pockets and in a safe on the premises.
In considering the first assignment of error urged by the defendant that the direct examination testimony of Officer Fahrenkamp was conclusionary in nature and invaded the province of the jury, necessary reference to the transcript of the evidence shows the following:
'Q When you arrived, what did you find?
A The two victims; Reavis and Huskey.
Q (By Mr. Curran) Reavis and Huskey were there when you arrived?
A Yes, sir.
Q What did you do when you arrived?
A I proceeded to get a description of the holdup man.
Q What happened then? A When I was getting the description of the holdup man, during the course of the description, Reavis said he had shot the holdup man.
Q (By Mr. Curran) What did you do after you got the description?
A About this time I heard a call come out over the police radio that there was a man on a porch at 3428 Meramec, which was in the rear of that address.
Q What did you do then?
A I immediately responded. I went over there to see if, maybe, this was a part of the holdup.
A colloquy immediately took place at the bench between the Court and the attorneys resulting in the Court giving the Jury the following instruction:
'THE COURT: Members of the jury, you are instructed to disregard the terminology used by the witness; that is, the term 'holdup man,' and the witness is instructed not to use that term in answering the questions of the Assistant Circuit Attorney.'
The defendant contends that this action of the Court was not sufficient to erase the prejudicial effect of the officer's testimony and particularly so where the Court reversed itself, thereby emphasizing and compounding the error. We do not agree with the assertion that by reversing itself the Court enhanced the effect of the alleged error, nor do we conclude that the defendant was in any wise prejudiced by the officer's testimony or the Court's ruling in respect thereto. To begin with, it is to be noted that when the word 'victims' was used by the witness the objection thereto was sustained by the Court and the jury instructed to disregard it. On the basis of the authority hereinafter cited, we hold that the Court's action was sufficient to obviate any prejudicial effect because of the descriptive use of the word.
With respect to the use of the words 'holdup man' by the witness, this appellation of the defendant appeared three times in the witness's testimony before the defendant objected; however, we do not predicate our ruling on this point on the basis of waiver. State v. Ransom, 340 Mo. 165, 100 S.W.2d 294(4, 5). In a somewhat analogous situation, in State v. Mallory, Mo., 423 S.W.2d 721, 723, the following there occurred: This Court held that the action of the trial Court in sustaining the objection, though denying the motion for mistrial, was sufficient to alleviate the adverse effect of the latter part of the witness's voluntary answer and did not deny the defendant a fair trial. See also the case of State v. Burnett, Mo., 429 S.W.2d 239, 246, where the defendant was referred to as a 'hoodlum', and the action of the Court in sustaining the objection and instructing the jury to disregard it was held to be sufficient relief by this Court to avoid any prejudicial effect. Because it applies here, what the Court said in State v. Nolan, Mo., 423 S.W.2d 815, 818, concerning this general subject warrants repeating: Subsequently, the Court in Nolan continued, l.c. 819: See also State v. Dennison, Mo., 428 S.W.2d 573, 576, wherein police officer's volunteered testimony that defendant and a confessed robber had become acquainted in penitentiary on a previous occasion did not require granting of a mistrial. Also illuminating on this point is State v. Pence, Mo., 428 S.W.2d 503, 506; State v. Tettamble, Mo., 394 S.W.2d 375, 381; State v. Wilkins,...
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