State v. Eno, 45892

• Decision Date: 09 June 1958
• Docket Number: No. 2,No. 45892,45892,2
• Citation: 313 S.W.2d 720
• Parties: STATE of Missouri, Respondent, v. Tony ENO, alias Otis Eno, Appellant
• Court: Missouri Supreme Court

Page 720

313 S.W.2d 720

STATE of Missouri, Respondent, v. Tony ENO, alias Otis Eno, Appellant.

No. 45892.

Supreme Court of Missouri, Division No. 2.

June 9, 1958.

No appearance for appellant.

John M. Dalton, Atty. Gen., J. Richard Roberts, Sp. Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

Tony Eno has been found guilty of robbery in the first degree and sentenced to twenty years' imprisonment.

According to the evidence of both the state and the defendant the facts were that about 6:30 p. m. on January 7, 1956, four or five men participated in the armed robbery of a Safeway Store in Joplin. The four or five men drove to Joplin from Kansas City in three automobiles. At least three of the men, one admittedly armed with a gun, entered the store and at gunpoint compelled the manager to open a safe and place more than $1,800 in currency and coins in a paper bag and hand to one of the robbers. The robbers then caused the manager to walk ahead of them pushing a grocery cart past the check-out girl. Because he was compelled to walk ahead of the robbers most of the time the store manager was unable to identify Tony as one of the robbers. But Shirley Gibbs, the check-out girl, and Norman Boyd, who was sacking groceries for Shirley, and Charles W. Raines, a customer, all positively identified Tony as one of the robbers. Shirley and Norman had previously identified Tony from photographs, Norman had picked him out in a jail cell in Neosho and Shirley had picked him out in a police line-up in Carthage. When cross-examined as to the certainty of her identification Shirley said, 'He just stood out. * * * His face just stood out, just something.'

Tony's defense was an alibi. Among other things he testified that on January 7, 1956, he had an appointment with his niece, Mrs. Humphreys, that he arrived at her home in Kansas City about 1:30 or 2 o'clock and after coffee drove her downtown and let her out at Harzfeld's--she says it was then 2:30 or later. His car had been involved in a wreck and he drove to Allen Chevrolet for an estimate and then to Hilliard Chevrolet to check on the repair of his automobile. His car repair was not finished and he then went 'back downtown.' He denied that he was in Joplin on January 7, 1956. On cross-examination he said, after he again drove downtown, that he went to a barbershop. Thereafter he says that he went to his nephew's office, Dr. Humphreys', and had an adjustment on his back. He thinks it was then 6 or 6:30. He said, 'I sincerely believe,' after going to Dr. Humphreys' office, that he went to his sister's home and there saw the Alexanders, his sister's tenants. He was not certain about giving the prosecuting attorney the name of Florence Guthrie as a person he saw sometime during the evening. Mrs. Humphreys corroborated his testimony. 'Lindy' Pierson, a defense witness, testified that on January 7, 1956, he and 'Shep' (Sheppard), Ronald Eugene Francisco, known by the alias of Wilson, (deceased at the time of the trial, incidentally) and Robert C. Weathers drove to Joplin in three automobiles, held up the manager and robbed the Safeway Store, left two of the automobiles hidden behind a chat pile near Joplin and drove back to Kansas City. He said that Tony was not with them on that day, that he did not see him that day, and that he did not participate in the robbery of the Safeway Store in Joplin. Formerly they were fellow inmates of the Kansas State Penitentiary which 'Lindy' says did not necessarily make them 'good friends. I am not a good friend of him.'

Despite the corroboration of his plea of not guilty and alibi there were two circumstances in his testimony from which the jury may have drawn unfavorable, incriminating inferences upon the essential question of his guilt. He admitted on cross-examination, not only that he had told the prosecuting officials but the fact was, that on the 8th, the day following the robbery, he and 'Lindy' Pierson's nephew, Trudy, came to Joplin, got the two automobiles hidden behind the chat pile and returned them to Kansas City. He denies that two women, one of whom he had married, came with them but since there were two cars to be returned he does not explain how he and Trudy got to Joplin in an automobile and returned two automobiles back to Kansas City. He denied or was evasive about parts of the conversation and he claims that the interview he had with the prosecuting attorney and his investigator was not of his own seeking, nevertheless, he admits that he did talk to them prior to his trial. He now says that what he did relate concerning the Safeway Store robbery was told to him by Francisco. In any event, the investigator testified that the meeting in the prosecuting attorney's office was arranged at Tony's request and Tony, in attempting to persuade the prosecuting attorney and his assistants of his innocence, said that he could tell them who had committed the robbery, where each man stood, by which doors they left, where the cars were parked and the route they took out of Joplin. In addition to Pierson, Weathers, Wilson (Francisco) and Sheppard, he said that the fifth man was Ollie Penny and that two women accompanied them on the trip.

The single assignment in his motion for a new trial is a claim of newly discovered evidence. The motion is in proper form, supported by affidavits from his counsel indicating diligence in searching for certain witnesses and...