State v. Dupepe, 42359

• Decision Date: 09 July 1951
• Docket Number: No. 42359,No. 1,42359,1
• Citation: 241 S.W.2d 4
• Parties: STATE v. DUPEPE
• Court: Missouri Supreme Court

Page 4

241 S.W.2d 4

STATE v. DUPEPE.

No. 42359.

Supreme Court of Missouri, Division No. 1.

July 9, 1951.

William J. Gilwee, Kansas City, for appellant.

J. E. Taylor, Atty. Gen., E. L. Redman, Asst. Atty. Gen., for respondent.

COIL, Commissioner.

Clement A. Dupepe was convicted of robbery in the first degree and sentenced to five years in the penitentiary.

On his appeal, four assignments of error are briefed. Three of these are argued under one point, that the evidence was insufficient to sustain the verdict. The fourth is, that the court improperly overruled an objection by defendant's counsel to a statement by the assistant prosecuting attorney which referred to defendant's failure to testify.

On December 27, 1948 Charles Coffey and Eddie Warren were on duty as employees in a filling station located in Independence, Jackson County, Missouri. On the premises was a small (about 5' X 7'), well-lighted office. Outside was a series of six lights spaced at intervals around and under the eaves. The walls of the building were glass from a place four feet off the ground to the roof. There was a row of floodlights trained upon the filling station driveway.

At 11:30 P. M. on the date mentioned, Coffey and Warren had counted certain money with which they had been 'charged' as employees, preparatory to the arrival of another employee for a change of shifts. This money, or a portion of it, had been placed on a desk in the building. Two men appeared and passed the window immediately in front of the desk at which Coffey and Warren were standing. One man walked in a 'slouched' or stooped position, entered the station, and took a 'slouched' position against the desk. The other man remained at the door and shortly 'pulled a gun and said, 'Give him the money." The man at the desk cupped his hands and Coffey and Warren, or one of them, placed $87.72, at least part of which was the money from the desk, into the cupped hands. The two men then immediately left the station, the one carrying the money continuing to walk in a stooped manner.

Coffey and Warren immediately reported the incident to the Independence police. Police officers arrived within approximately ten minutes. Included in the written report made by the police officers were descriptions of the two men involved in the robbery furnished jointly by Coffey and Warren. The description of the participant (Smith) other than defendant was: White, American; light hair; color of eyes, unknown; height, 6 feet; age, 32 years; weight, 160 pounds; wearing a tan camel's-hair overcoat and grey hat. The description of the other participant was: White, American; light hair; color of eyes, unknown; height, 5 feet 6 inches; age, 35 years; weight, 150 pounds; wearing a black overcoat and black snap-brimmed hat. Police Officer Hayden testified that the foregoing were the descriptions given to him by Coffey and Warren; that Coffey and Warren were excited; that they told him that one of the men was 'crouched down.'

A short time after the robbery, probably a week or two, Coffey and Warren saw a picture of two men in the Kansas City Star, one of whom they recognized as the man who held the gun on the night of December 27. This was made known to the authorities who then had in custody the men pictured in the newspaper. Both Coffey and Warren identified one of the men pictured as the man who held the gun upon viewing him either at a 'show-up' in police headquarters or at a preliminary hearing. Neither Coffey nor Warren identified the second man in the newspaper picture as a participant; but Coffey signed a warrant charging both the man they had identified and the other man (not identified) as participants in the robbery. Coffey explained that he did so because the man he did identify (Smith) implicated the man with whom he was pictured in the newspaper (one Rogers), as being the other participant in the robbery.

Later, defendant was taken into custody by the Kansas City police and both Coffey and Warren identified him as the man who was 'slouched' at the desk. Positive identifications of defendant were made by Coffey and Warren on three occasions; once by Coffey at defendant's preliminary hearing, once by Warren at a police 'show-up', and both identified defendant at the two trials of this case.

It was developed by counsel for defendant at the last trial that the description of the man who held the gun (Smith), given the Independence police by Coffey and Warren, fitted Smith almost perfectly; that the description of the other participant given the Independence police, compared with the actual appearance of defendant at the trial, contained certain discrepancies, viz: defendant had dark rather than light hair, and was 6 feet 1 inch in height rather than 5 feet 6 inches.

It is the contention of the appellant, as we understand it, that the description which Coffey and Warren furnished, immediately after the robbery, of the man, purportedly the defendant, was in such conflict with the actual appearance of defendant as to make the testimony of Coffey and Warren insubstantial in that it was self-destructive. Appellant in his brief says: 'so self-destructive as to be of no value and not sufficient for a jury to base a verdict finding the appellant guilty beyond a reasonable doubt.' This contention is untenable. The evidence was clearly sufficient to sustain the verdict of conviction. The discrepancies in the descriptions given by Coffey and Warren shortly after the holdup and the actual appearance of the defendant, considered in connection with the contrast between the discrepancies in the description of defendant and the accuracy of the description as to the other alleged participant, were clearly matters for the consideration of the jury in determining the credibility of the witnesses and the weight of the evidence. This is true also of the testimony of Coffey that he signed a complaint involving one other than the defendant as the second man involved in the robbery, and true of the testimony that Coffey and Warren were excited at the time of the incident. None of these matters destroyed or made insubstantial the positive identifications of the accused by Coffey and Warren.

The one case cited by appellant in support of his point, State v. Gregory, 339 Mo. 133, 96 S.W.2d 47 does not sustain the contention. In that case, the evidence was attacked as not being substantial and the testimony of the prosecuting witnesses pertaining to the identification of the accused was discredited in a far more substantial degree than was the testimony of the prosecuting witnesses in this case. In the Gregory case, we held the identification sufficient. It is true, as stated in State v. Gregory, supra, that this court may pass upon the credibility of testimony in so far as to determine whether or not such testimony constitutes substantial evidence, i. e., evidence sufficient to permit reasonable minds to believe the defendant guilty beyond a reasonable doubt; and it is true, as also stated in State v. Gregory, supra, that 'Where the state's evidence is inherently incredible, self-destructive, or opposed to known physical facts,' an appellate court is probably in as good a position as a trial court to make such a determination, but that 'where it is claimed the testimony is completely impeached by contradictory evidence, we are at a great disadvantage, since we lack the means to knowledge that come through confrontation. About all that can be said is that in such instances we reserve the power to grant relief when the denial of it would shock the sense of justice.' 96 S.W.2d 53. Here, the positive identifications by both Coffey and Warren of defendant as one of the participants in this robbery, together with their explanations as to why they believed the...