State v. Gilliam, 48437

• Decision Date: 13 November 1961
• Docket Number: No. 48437,No. 2,48437,2
• Citation: 351 S.W.2d 723
• Parties: STATE of Missouri, Respondent, v. Roger Lee GILLIAM, Appellant
• Court: Missouri Supreme Court

Page 723

351 S.W.2d 723

STATE of Missouri, Respondent, v. Roger Lee GILLIAM, Appellant.

No. 48437.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1961.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 11, 1961.

No attorney of record for appellant.

Thomas F. Eagleton, Atty. Gen., James J. Murphy, Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

Roger Lee Gilliam was separately charged, tried and found guilty of robbery in the first degree by means of a dangerous and deadly weapon, with a prior conviction of a felony, and appeals from a judgment imposing a sentence of fifteen years' imprisonment. Secs. 560.120 and 560.135. (Statutory references are to RSMo 1959 and V.A.M.S.) The defendant introduced no evidence and has filed no brief. In his motion for new trial, he alleges error, among others, in the admission of evidence, in limiting the cross-examination of the State's witnesses, in finding defendant subject to the provisions of the new habitual criminal act (Secs. 556.280 and 556.290), in failing to grant defendant's request for the inspection of certain police reports, and in giving an instruction.

The State's evidence warranted the following findings: About 7:45 p. m. on Mrach 2, 1960, three colored men robbed the Ross Rexall Drug Store, 925 Goodfellow, St. Louis City, Missouri. Mr. Ross had just gone home. Stanley Schneider was part owner of the business. The employees present were Mrs. Maxine Rushing, a sales clerk, and Charles Wagstaff, a nineteen-year-old high school student, who were near a cash register at the rear of the store, and David Block, a registered pharmacist in charge of the store, who was at the prescription counter on the other side of the store. Gladys Maxwell followed one and preceded another colored man into the store. The first was later identified to her as Roger Gilliam and the other as James Beard. Another man, referred to as robber No. 1, put a gun on Mrs. Rushing, told her it was a holdup and to give him the money, except the pennies, in a cash register. She was frightened and screamed. Wagstaff looked, saw the gun and put his hands up. This robber told Mrs. Rushing to be quiet, he didn't want to hurt her; and Wagstaff to put his hands down and come over by the register. Gladys Maxwell, about midway of the first aisle, turned to leave, saw Beard standing by the front door, and was told to stand where she was, which she did. Mrs. Rushing took the money from the cash register, put it in a bag and handed it to the robber. Mr. Block started to turn around when he heard the scream, felt something poking him in the back, and a voice said: 'Don't turn around and do what I tell you and you won't get hurt.' There was testimony that this man had been in the store two or three times and Mrs. Rushing and Wagstaff positively identified Roger Gilliam as this robber. Each testified that he was poking Mr. Block in the back with a gun. Mr. Block was then ordered to walk down that aisle. When they came to another cash register, he was told to put the money, including the change, in it in a bag. He did this and handed the bag of money to the robber behind him. The robber continued to poke Mr. Block in the back, and telling him not to look around. Mr. Block followed the instructions. Robber No. 1 and defendant then forced Mrs. Rushing, Wagstaff, Mr. Block and two or three customers, who had entered the store, into a back room. Gladys Maxwell, who had been left standing in the store, came back to the room after the robbers departed, knocked on the door, and said: 'They are gone now, you can come out.'

The robbers obtained $249 of the store's money. Mr. Block's possession of the money was sufficient evidence of ownership to sustain a conviction. State v. Montgomery, 181 Mo. 19, 29, 79 S.W. 693, 696, 67 L.R.A. 343; State v. Moore, Mo., 80 S.W.2d 128 .

Following the robbery Gladys Maxwell and Wagstaff were taken to the police station, identified the man at the door, and were informed his name was James Beard. See State v. Deppe, Mo., 286 S.W.2d 776. Defendant objected to this testimony on the ground it was immaterial and irrelevant, and assigns error in its admission. Assignments of error in defendant's motion for new trial not presented to the trial court at the time of defendant's objections to the evidence are not preserved for appellate review. State v. Hernandez, Mo., 325 S.W.2d 494, 496[3, 4]; State v. Richardson, Mo., 321 S.W.2d 423, 427. Under the State's evidence a jury could infer that James Beard aided and abetted the chief perpetrators of the robbery by acting as a 'lookout.' He entered the store, stood by the door while the robbery was progressing, was given no order by the chief actors during the robbery, was not forced by them to accompany other customers to and remain in the back room of the store, and was not in the store after they left. The jury could find that witnesses Maxwell and Wagstaff were identifying (State v. De Poortere, Mo., 303 S.W.2d 920, 924; State v. Robertson, Mo., 328 S.W.2d 576, 582) an aider and abettor of the robbery (State v. Holmes, 316 Mo. 122, 289 S.W. 904, 907; State v. Childers, Mo., 313 S.W.2d 728, 731). If this testimony were immaterial and irrelevant, defendant's objection to its admission, it did not prove any issue in the case, and was not prejudicial.

A number of assignments (six) in defendant's motion question the admission in evidence of State's Exhibit No. 1 and the court's finding that defendant was subject to having his sentence, in the event he be found guilty by the jury, determined by the court under the habitual criminal act. Defendant's assignments are verbose and, although they purport to set forth the reasons for the asserted error, some are general, in the nature of conclusions, and do not set forth with particularity the specific grounds or causes of the error. Sup.Ct. Rule 27.20, V.A.M.R. For instance: Assignments, among others, that a verdict or a finding of fact 'is against the evidence'; 'is against the law'; 'is against the law and the evidence,' preserve nothing for appellate review. State v. Roberts, Mo., 332 S.W.2d 896, 898[2-4]; State v. Townsend, Mo., 327 S.W.2d 886; State v. Russell, Mo., 324 S.W.2d 727, 733.

After a hearing in the absence of the jury at the close of the evidence, the court found defendant was subject to the habitual criminal act. State's Exhibit 1, so far as involved here, was an authenticated copy of a judgment and sentence wherein, upon withdrawing a plea of not guilty to 'robery' as charged and entering a plea of guilty, defendant was sentenced to three years' imprisonment in the Arkansas penitentiary by a circuit court of the State of Arkansas and defendant's record of confinement in and discharge from the Arkansas penitentiary upon the expiration of said sentence. Defendant takes the position said exhibit was inadmissible because 'robery' is not a crime in Arkansas or any other jurisdiction. A reading of the exhibit indicates this was not mistaken orthography but a clerical error. Whichever it may be, the stated ground was no reason for excluding the exhibit. A person of common understanding who reads the exhibit, not for the purpose of finding defects but to ascertain its meaning, would not be misled or in doubt as to its meaning. The misspelling does not change the pronunciation of robbery, or obscure the meaning of the exhibit; and the wording is readily understandable and apprises one of the offense involved. Such clerical or grammatical errors are not fatal. State v. Byrd, 278 Mo. 426, 213 S.W. 35; Melber v. Yourtee, Mo., 203 S.W.2d 727, 729; State v. Gilmore, 336 Mo. 784, 81 S.W.2d 431, 433; Toler v. Coover, 335 Mo. 113, 71 S.W.2d 1067, 1071.

The authenticated copies of the official records from the State of Arkansas appearing in State's Exhibit 1 were admissible in evidence under Secs. 490.130 and 490.220, and an objection to their competency that they were not the best evidence but copies is without merit. State v. Hagerman, Mo., 244 S.W.2d 49, 53[10-12]; State v. Ash, Mo., 296 S.W.2d 41, 43.

It also follows that the assessment of defendant's punishment under Laws 1959, S.B. 117 (now Secs. 556.280 and 556.290) by the court upon the jury's returning a verdict of guilty was proper, and defendant's complaints against the form of verdict instruction because the jury did not assess the punishment are overruled. State v. Williams, Mo., 343 S.W.2d 58, 60[3-7]; State v. Chamineak, Mo., 343 S.W.2d 153, 163, and cases cited in the above cases.

The following occurred during the cross-examination of witness Wagstaff:

'Q. Had you and she [referring to Maxine Rushing] discussed what you thought----

'Mr. Murphy: (interrupting) I will object to that question about a discussion, your Honor.

'The Court: Sustained.'

The State's objection may have been premature. However, nothing further with respect to this inquiry appears of record, and the trial court should not be convicted of error without some showing of prejudice to defendant. State v. Francies, Mo., 295 S.W.2d 8, 11; State v. Feltrop, Mo., 343 S.W.2d 36, 38[6, 7].

Witness Wagstaff, after answering that defendant's counsel came to the drug store on a specified Sunday and asked to talk to him, was asked: 'Did you talk to me on that Sunday?' The State's attorney objected, stating in part: 'I think that is an impropriety with respect to talking to a State's witness, and I will object to the question.' The court informed defendant's counsel he could ask the witness if he refused to talk to him, and struck from the...