State v. Hampton, 46461

• Decision Date: 13 October 1958
• Docket Number: No. 46461,No. 2,46461,2
• Parties: STATE of Missouri, Respondent, v. Paul Dean HAMPTON, Appellant
• Court: Missouri Supreme Court

Page 348

317 S.W.2d 348

STATE of Missouri, Respondent, v. Paul Dean HAMPTON, Appellant.

No. 46461.

Supreme Court of Missouri, Division No. 2.

Oct. 13, 1958.

Motion for Rehearing or to Transfer to Court en Banc Denied

Nov. 10, 1958.

C. A. Kieffer, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.

EAGER, Judge.

Defendant was found guilty of 'Stealing in a valid at least $50.00' (Sections 560.156 and 560.161 Cum.Supp. 1957, V.A.M.S.); at the same time he was found 'not guilty of Burglary 2nd degree.' The jury being unable to agree upon the punishment, the court assessed it at four years in the penitentiary. See 42 V.A.M.S. Rule 27.03 and Section 546.440 RSMo 1949, V.A.M.S. Judgment and sentence were thereafter rendered in due course, and after a motion for a new trial was overruled. The amended information included a charge of the prior conviction of a felony, but the jury made no finding thereon.

The State's evidence was substantially as follows: a store, known as the 'Alsam Surplus Store' at 4325 Manchester in St. Louis was owned and operated by a corporation of that name; on the evening of Dec. 31, 1956, it was closed and locked up, with three different locks on the front door. At about 2:45 or 3:00 a. m. on Jan. 2, 1957, the President, Sam J. Wolff, was called to the store by police where he found the front door 'splintered' and all three locks broken. It was found that 'about' 23 jackets were missing, of which 'about' five were plastic jackets with quilted linings, and the rest were reversible 'baseball warm-up jackets,' navy blue with white panels down the outside of the sleeves; the cost of the various jackets varied from $5 to $6.25 each; also missing were seven or eight letter openers, costing about thirty cents each, and 'around' $5 in coins. It is obvious that, regardless of some ambiguities in numbers and values, the total value of the property missing was substantially over $100. From the testimony of police officers, it further appeared: that an officer on this beat found the front door secure at 1:30 a. m. on the morning in question; he further found it broken open, in the manner stated above, around 3:00 a. m.; he summoned other officers and notified Mr. Wolff. The police found a 'tire tool' on the floor inside the store; this was preserved and introduced as an exhibit. Just a week later, at 3:30 a. m. on Jan. 9, 1957, the defendant Hampton was arrested while running along Folsom Avenue, near Tower Grove in St. Louis. He was then wearing a blue jacket with white stripes down the sleeves; he was taken to a district station, booked, and later interrogated. On cross-examination of one of the arresting officers by defendant's counsel the following occurred: 'Q. Sergeant, what was the particular reason for arresting the defendant? A. There had been a burglary in the neighborhood, and he fit the description of that burglar. 'Q. On what charge did you book him at the Seventh District? A. For investigation, suspected of burglary.' On the same subject, the defendant testified, on direct examination:

'Q. And then you were later arrested on the street? A. Yes, sir.

'Q. Under what circumstances? A. I don't know, sir. There was supposed to have been a burglary that happened, I was walking down the street on Folsom Avenue. * * *

'Q. (By Mr. Leahy, continuing) What time of the day or night was it? A. It was early in the morning, around three-thirty.'

On rebuttal, again referring to the subject of the arrest, defense counsel's cross-examination of an officer was in part as follows:

'Q. What was he talking about at the Second District? A. Whether he was implicated in a burglary.

'Q. Which burglary? A. Savoldi's Food Market.

'Q. Any other burglaries? A. Sir?

'Q. Any other burglaries? A. At that time, not to my knowledge, I mean that was the only reason we took him out to the Second District.

'Q. Specifically, you took him for the Savoldi's job. Is that correct? A. Yes, sir. * * *

'Q. So, in your knowledge of police practice, they had a whole bunch of crimes that a person could be questioned about? A. I was only working on the Savoldi burglary which happened a half-hour or fifteen minutes before he was picked up.'

This rebuttal witness had not referred to the Savoldi burglary on direct examination. (We have set out these matters because of a contention which will be mentioned later.)

Two of the police officers who testified had participated in, or were present at, the questioning of defendant concerning the crime now charged. Mr. Wolff, who also testified, was present during a portion of the questioning. One or more of these witnesses testified that defendant made each of the following oral statements: that he met four others, two of whom he knew, and that they rode to the Alsam Store for the purpose of burglarizing it; or, as stated otherwise, that the five 'were looking for a place to break into'; that he and one other fellow remained outside in the car while the other three entered and looted the store, returning with the jackets and 'knives'; that defendant identified the jacket which he was wearing when arrested as one of those taken in the burglary; that he took the jackets to a tavern the next day and sold them to a colored taxi driver for $20, and that he got $5 for his part. The officers testified further that no violence or threats were used or made and that no promises of leniency were given. Mr. Wolff further identified the jacket defendant was wearing when arrested as one of the precise type which he had in the store. The State also offered the record of a conviction of Paul Dean Hampton, age 17, on March 7, 1955, in Cooper County, Missouri, for 'Tampering with an automobile' for which he received a sentence of two years in the Intermediate Reformatory, being discharged by 'Commutation' on June 16, 1956.

The defendant himself testified as his only witness. In substance, he gave the following version of the occurrences: that on the evening of Jan. 1, and the morning of Jan. 2, 1957, he visited various places, including a movie, two or three restaurants, a tavern and a bus station, during the course of which travels he picked up the other four persons referred to; at about 3:00 a. m. they drove to a restaurant on Manchester which he said was next door to the 'sporting goods place'; that he and one companion entered this restaurant and that he ate a piece of pie and drank a cup of coffee; that when these two went back to the car the others were gone, but soon all three reappeared, carrying jackets like the one produced at the trial; thereupon the jackets were dropped off at one 'boy's house,' and defendant was taken to his home; that defendant saw Wayne Armon (one of the participants) again the next night and went with him while he supposedly sold the jackets; when asked if Armon did sell them, defendant replied: 'I guess he did, yes.' He also stated that he saw Armon put them in a car 'parked around the alley.' On that trip defendant was given one jacket for himself. Defendant further testified that he told the police that he had nothing whatever to do with the burglary and only learned about it on the next night; he denied specifically making some of the statements attributed to him by the police. He also testified that the police 'slapped' him around and struck him while he was being questioned. On cross-examination: he admitted the Cooper County conviction and admitted that he told the police that Armon gave him $5 but not as a 'share'; he testified that when arrested he was walking and was not running, and that he was coming from his sister's house where he had been playing cards, although his wife was at home. During the State's case in rebuttal an officer testified that defendant had stated, after his arrest, that he was looking for his sister's house at a stated location when arrested, and that he had been doing so for more than two hours. On cross-examination of this witness specific references to the 'Savoldi' burglary were brought out, as previously stated. Thereafter, it was shown by the State (without objection) that the place where defendant was arrested was a short distance from the location of the 'Savoldi' burglary, and that the time was about fifteen minutes after its occurrence.

We shall refer to the appellant as the defendant, and to the respondent as the State. Defendant has not questioned the sufficiency of the evidence to make a submissible case, either in his motion for new trial or in counsel's brief. We do not, therefore, consider that question. The first point briefed by the defendant is, in substance, that the court erroneously and prematurely interrupted the jury's deliberation to receive an incomplete verdict, erroneously gave a new instruction on the assessment of punishment, erroneously failed to return the jury to the jury room for further deliberation, and prematurely assessed the punishment. The transcript shows that the jury (after having been duly instructed and on the same day) informed the court that 'they had agreed upon the guilt of the defendant, but were unable to agree upon the punishment * * *,' and that thereafter the court gave them Instruction No. 10 as follows: 'In addition to the other instructions which the Court has heretofore given you, you are further instructed that under the laws of this state the jury, after hearing the evidence and instructions of the Court, you (sic) should retire and decide upon the guilt or innocence of the defendant in this case; and if the defendant is found guilty by you to assess his punishment in accordance with the other instructions of the Court. If, however, after due deliberation you have been able to and do agree upon the guilt of the defendant but you are unable to agree upon the punishment to be assessed in this cause for such guilt you may return into court a verdict which states that you have agreed upon the guilt of the...