State v. Dennison
| Citation | 428 S.W.2d 573 |
| Decision Date | 10 June 1968 |
| Docket Number | No. 52672,No. 1,52672,1 |
| Parties | STATE of Missouri, Respondent, v. James Albert DENNISON, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Claude W. McElwee, Special Asst. Atty. Gen., St. Louis, for respondent.
Thomas R. Schwarz, St. Louis, for appellant.
A jury found the defendant guilty of robbery in the first degree by means of a dangerous and deadly weapon. The state out of the presence and hearing of the jury proved a prior conviction of murder in the second degree and the court sentenced the defendant to imprisonment in the penitentiary for a period of 35 years. Section 556.280, RSMo 1959, V.A.M.S. The defendant's motion for new trial was overruled and he appealed. Since the sufficiency of the evidence is not questioned, a detailed statement of the facts proved is not required.
Maurice Hendin owned and operated Maury's, a drug, sundries and food store, at 2424 South 10th Street in the City of St. Louis. On May 6, 1966, between 7:30 and 8:00 p.m., he was robbed of an amount in excess of $250 by two men while he was alone in his store. The two men were later identified as the defendant Dennison and George Frank Lindner. When the robbers entered the store, Mr. Hendin was at a counter near the front entrance. The defendant remained at the front of the store, half-turned and looking toward the door. Lindner came around the counter, pushed a pistol in Mr. Hendin's ribs and forced him to go to the rear of the store where Lindner took money from the cash register The defendant was identified at the trial as one of the robbers by Mr. Hendin and by Russell Talley who lived on the same street, a short distance from the store. Mr. Talley went to the store to make a purchase while the robbery was in progress. When he opened the door and started to enter, the defendant told him the store was closed and pushed the door shut. Mr. Talley made another attempt and was again refused entrance by the defendant who then turned a sign on the front door indicating that the store was closed. Mr. Talley returned to his home but remained on the front sidewald talking to a neighbor. He saw the defendant and Lindner leave the store and get into a parked automobile. As the automobile passed his home, Mr. Talley again got a view of the defendant who was seated on the passenger side of the front seat. As the car passed, Talley stepped into the street to get the license number, but the plate was so dirty that he was able to discern only three digits.
from containers under the counter and out of Mr. Hendin's pocket. Lindner warned Mr. Hendin on several occasions that if he was good nothing bad would happen to him. Mr. Hendin pleaded with the robbers to leave some money for change but his request was refused. The only time the defendant said anything was when he told Lindner to leave Mr. Hendin in the rear portion of the store as they were about to depart. The robbers were in the store between five and eight minutes.
Linder was wounded and captured while engaged in another robbery several weeks later. He confessed participating in the robbery at Maury's store, and, according to to the state's evidence, Lindner gave the police information which led to the arrest of the defendant in Kansas City and his identification as one of the robbers. Lindner pleaded guilty to the robbery at Maury's as well as the one where he was captured; he was serving a sentence in the penitentiary at the time of the defendant's trial. As the only witness for the defendant, he testified that the defendant was not his accomplice in the robbery of Maury's store. Other evidence will be referred to as it becomes pertinent.
The defendant's first contention is that the trial court erred in submitting to the jury over the defendant's objection verdict forms which constituted a comment on the evidence and violated provisions of Amendment 5 and Amendment 14 of the United States Constitution, and Art I, § 10, of the 1945 Constitution of Missouri, V.A.M.S., relating to due process and equal protection of the laws. The objection made was that the form for the verdict of guilty was in substantially larger type and heavier print than the form for a verdict of not guilty. We have been furnished with certified photocopies of the forms of verdict used. The guilty form is in larger and a different type than the other but apparently no heavier. The not guilty form is in smaller type but it is easily readable and the words 'not guilty' are in italics which is a kind of type used chiefly to distinguish words for emphasis and importance. The forms as we view them do not by reason of their format create an invitation or temptation to use one in preference to the other. The obvious purpose is to distinguish between them so that the jury will not inadvertently use the wrong one in recording its verdict. No other means of accomplishing this proper purpose has been suggested which could not be subjected to the same sort of criticism as the defendant now makes. The use of colors could be made to appear even more objectionable.
In State v. Randolph, Mo., 39 S.W.2d 769, 773(4), cited by defendant, the trial court gave a form of verdict finding the defendant guilty as charged and assessing 'her punishment by imprisonment in the penitentiary for a term of _ _ years', another finding her guilty and assessing 'her punishment by _ _', and a third form finding her not guilty. The defendant contended this gave undue prominence to imprisonment in the penitentiary. The judgment was reversed on other grounds The defendant's next contention is that the trial court erred in failing to declare a mistrial 'when the State's witness Officer Bonson, on direct examination, volunteered the fact that the defendant and the confessed robber had become acquainted with each other in the penitentiary on a previous occasion.' In the defendant's case the confessed robber, Lindner, had testified that his accomplice in the robbery at Maury's was not the defendant, but a gray-haired man named Harry about 45 years old whose last name he did not know; that he was interrogated by the police on six or seven occasions regarding his accomplice; that the police officers first brought up Mr. Dennison's name, and he, Linder, told them although he was acquainted with Mr. Dennison, he was not the other robber, but when the officers continued to question him he got tired and finally told them to put down Abbie Dennison if that was what they wanted. On cross-examination Lindner testified that he had served a two-year term in the Missouri State Penitentiary beginning in 1954 and that he had known James Albert Dennison for 15 or 16 years and that they were just friends.
and in remanding the cause the court stated that giving the three forms of verdict was subject at least to some of the defendant's criticisms and the procedure should not be repeated on retrial. The case does not support the defendant's contention in the present case. All of the instructions to the jury in this case properly refer to the standards to be observed by the jury in determining the defendant's guilt or innocence including the state's burden to prove guilt beyond a reasonable doubt. The last instruction concludes with this unmistakable admonition: '* * * you will bear in mind that it is your duty to be governed in your deliberations by the evidence as you understand it and remember it to be, and by the law as given by the Court in these instructions, and render such verdict as in your conscience and reason and candid judgment seems to be just and proper.' No violation of constitutional guarantees has been demonstrated or other prejudice shown. The contention is denied.
Police officer Robert Bonzon, one of the officers that interrogated Lindner and a witness for the state in chief, testified in rebuttal that he had never known or heard of James Albert Dennison prior to the time Lindner told him and his partner, officer Owens, that his accomplice was an old fellow he knew as Abbie Dennis. He further testified that he and officer Owens then went to police headquarters and searched the entire evening to the early morning hours in the files for any similar names and came up with the name of James Albert Dennison and a Police Department photograph of the defendant. There was no objection to the testimony regarding the police files and the police photograph. The following then occurred:
In response to further questioning, officer Bonzon testified that Lindner told them the defendant might be staying at the Barclay Hotel in Kansas City or with a girl friend who operated a beauty shop.
In support of his claim that the court erred in not granting a mistrial, the defendant cites State v. Aubuchon, Mo., 381 S.W.2d 807, and State v. Mill, 318 Mo. 647, 300 S.W. 511. In the Aubuchon case, the prosecution brought out on redirect examination the fact that the witness' brother who was jointly indicted with the defendant was in the penitentiary in Jefferson City. The resulting implication was that the witness' bro...
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