State v. Dowe
| Decision Date | 14 October 1968 |
| Docket Number | No. 52894,No. 1,52894,1 |
| Citation | 432 S.W.2d 272 |
| Parties | STATE of Missouri, Respondent, v. Willie Sanchez DOWE, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Richard G. Altobelli Special Asst. Atty. Gen., St. Louis, for respondent.
Morris M. Hatchett, St. Louis, for appellant.
The defendant was convicted by a jury of robbery in the first degree. Section 560.120, RSMo 1959, V.A.M.S. A prior conviction within the purview of § 556.280 was charged and was conceded by the defendant. The court, therefore, assessed the punishment and sentenced the defendant to imprisonment for a term of fifty years. The defendant is represented on appeal by the same attorney who represented him at the trial.
The evidence tended to prove that the defendant violently assaulted the victim, Andrew Lee Whitlock, and robbed him of an amount in excess of four dollars. Mr. Whitlock, aged 61, residing at 4252 West North Market in the City of St. Louis, testified that he was retired from 'the railroad' on disability by reason of a colostomy. On the morning of July 2, 1966, he left his home to take a walk. He met a friend Sam Benyon and they walked on together. They arrived at North Market and Pendleton about 8 a.m., at which time and place someone walked up behind Mr. Whitlock, grabbed him by 'the collar of (his) neck', hollered 'give me all your money', and started beating him on the head with a piece of concrete. The assailant was later identified by Mr. Whitlock as the defendant. Every time Mr. Whitlock would look around the defendant would hit him again. Mr. Benyon was a very sick man and during the attack he staggered and fell and then walked away. Mr. Whitlock was struck at least five or six times on various parts of the head and became dezed. He had four dollars and some change in his left pants pocket and about nineteen dollars in the right pocket. After he had been beaten several times, Mr. Whitlock put his hand in his left pocket and threw two dollars on the hood of a parked automobile hoping to get the defendant to stop beating him. The defendant again demanded all of the money, hit Mr. Whitlock some more, and ran his hand in the victim's left pocket, took the rest of the money and tore the pocket and trousers in doing so. Mr. Whitlock got free and turned and hit the defendant, causing him to drop the brick or piece of concrete. The defendant then ran towards a telephone booth, picked up a wine bottle and said, 'now, I'm going to kill you.' However, the defendant cut himself on the bottle, and when his hand started bleeding, he stopped the attack and went away. When the defendant was arrested he was found to have a fresh cut on his hand.
Mr. Whitlock went about two blocks to Homer G. Phillips Hospital where he was treated and pictures were taken of the wounds on his head. Mr. Whitlock had never seen the defendant before, but the police apprehended him from the description given by Mr. Whitlock. The defendant was taken to the hospital and when he saw Mr. Whitlock the defendant in the presence of police officers said to his victim, 'I'm going to whip your--so and so--every time I see you', or words to that effect.
Two members of the St. Louis Police Department arrested the defendant in a gangway adjoining Sklar's Market which is on the corner of North Market and Pendleton. This is a place where 'winos' are accustomed to gather to drink and gamble. As the officers approached, the defendant was in a crouched position. When he saw the officers he arose and moved rapidly away in the opposite direction but halted when the officers commanded him to do so and drew their revolvers. The officers testified that Mr. Whitlock at the hospital identified the defendant as the robber and that the defendant threatened Mr. Whitlock with further beatings if he ever saw him 'on the street.' The police officers were unable to find anyone who would admit being a witness to the robbery. Mr. Benyon who had been in ill health died a short time before the trial which was about six months after the offense was committed. Mr. Whitlock did not tell the officers that Mr. Benyon was with him at the time of the robbery. His reason for not doing so was because of Mr. Benyon's ill health. None of the money taken from Mr. Whitlock was recovered. The doctor who treated Mr. Whitlock at the hospital testified and described the victim's physical condiciton, compared the pictures taken with his own findings, and stated the treatment given. The doctor also identified a hospital record on which he had noted that the patient had told him that he had been attacked and beat up by a man with a piece of concrete. The defendant did not testify in the case. To the extent necessary, other evidence will be referred to in connection with the questions presented.
The sufficiency of the evidence to support the verdict is not directly attacked, but the defendant contends that 'the verdict was improper as against the weight of the evidence and the concealment of evidence by the chief prosecution witness, the alleged victim.' In support of this assignment, the defendant's only citation of authority is State ex rel. Raydel v. Raible, Ohip App., 117 N.E.2d 480, 40 A.L.R.2d 950. This is a bastardy proceeding against the alleged father and the annotation deals with the allowance of attorney fees in such cases. The case is cited apparently on the proposition of law that where a party fails to produce or explain the omission of relevant evidence within his control, the jury may infer that such evidence would be unfavorable to him. Missouri cases recognize similar legal principles, but they afford the defendant no basis for relief in this court. In the first place, Mr. Whitlock is not a party to the action. As the prosecuting witness he testified that he did not participate in a crap game behind Sklar's Market. One of the defendant's witnesses, who at the time of trial was serving a one-year sentence in the St. Louis Workhouse, testified he had seen Mr. Whitlock get in an argument and 'scuffle' with the defendant as the result of a crap game. Mr. Whitlock in rebuttal denied the testimony and testified he did not know and had never seen the witness before and that his physical condition resulting from the colostomy would not permit him to do the things the witness claimed he did. This evidence as well as the victim's failure to tell the police of Mr. Benyon's presence went to the credibility of the prosecuting witness.
The determination of the credibility of witnesses is for the jury and the testimony of a single witness if believed by the jury beyond a reasonable doubt is sufficient to support a conviction. State v. Williams, Mo., 376 S.W.2d 133, 136(9, 10). The weight of the evidence in a jury tried case is for the jury in the first instance and for the trial court on a motion for new trial, and the reviewing court cannot reverse a judgment on the ground the verdict is against the weight of the evidence. State v. Hodge, Mo., 399 S.W.2d 65, 67(2); State v. Perkins, Mo., 382 S.W.2d 701, 703(1, 2); City of Webster Groves v. Quick, Mo.App., 323 S.W.2d 386, 392(11). The assignment is denied.
Further the defendant contends that the indictment and trial were improper because Negroes were systematically excluded from effective participation in the grand jury that found the indictment and the petit jury that served at the trial. In support of this contention, the defendant relies chiefly on Eubanks v. State of Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991, and Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76, 1 A.L.R.2d 1286. Unlike these and other cases cited, there was no motion to quash the indictment in the case at bar. After the petit jury was selected and sworn, counsel for the defendant out of the hearing of the jury announced that he was 'making a challenge to the array, based on the fact that the jury challenge was...
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