State v. Hands

• Decision Date: 13 July 1953
• Docket Number: No. 1,No. 43478,43478,1
• Parties: STATE v. HANDS
• Court: Missouri Supreme Court

Page 14

260 S.W.2d 14

STATE v. HANDS.

No. 43478.

Supreme Court of Missouri, Division No. 1.

July 13, 1953.

Sidney M. Glazer, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Frank W. Hayes, Asst. Atty. Gen., for respondent.

DALTON, Judge.

Defendant was convicted of robbery in the first degree by means of a dangerous and deadly weapon under the habitual criminal act and was sentenced to imprisonment in the state penitentiary for the remainder of his natural life. Sections 560.135 and 556.280 RSMo 1949, V.A.M.S. He has appealed.

The state's evidence shows that Mike and Meyer Goldstein operated a grocery store at 3400 Lucas avenue in the city of St. Louis. On Friday evening, January 26, 1951, about 7:20 p.m., Mike Goldstein was behind the check-out counter of the store and had just finished waiting on Frank Burnett, a customer, when two colored men entered. One of them, later identified as Alonzo Hands and as the defendant on trial in the court below, pulled out a gun and held it on Mike and told him it was a holdup. Mike was frightened and shrieked in fear. The other colored man, later identified as Milton Reynolds, went behind Mike, grabbed hold of him, held him and put something up against his back. The disturbance attracted the attention of Meyer Goldstein, who was behind the meat counter at the rear of the store. Two clerks, John Richardson and Theodore Douglas, were in the store during the robbery. The man with the gun tried but was unable to open the cash register, so he forced Mike to open it. This robber then took $485 in currency and silver from the cash register and he also took from beneath the counter a cigar box containing an Elgin wrist watch, a Benrus wrist watch, a Helbros wrist watch and a magnifying glass, articles belonging to customers of the store, but held as security for grocery accounts.

On the same evening, about 7:50 p. m. four city detectives went to 3635 Windsor street in the city of St. Louis. Two of them went to the rear door and two (Rung and Sullivan) went to the front door of the building where they identified themselves as police officers and inquired for Alonzo Hands. They were admitted by appellant's brother Harold Hands, who accompanied them to appellant's room on the second floor of the building. As they arrived on the second floor, appellant came out of his room and slammed the door behind him, but not before the officers had seen Milton Reynolds therein. Appellant was placed under arrest along with Milton Reynolds. The officers searched Reynolds and found two rolls of nickels on him. Appellant refused to accompany the officers and both appellant and Reynolds joined in a fight with the officers and were shot by them. Appellant and Reynolds fell to the floor in the room they were in when the officers arrived. On top of the bed in this room and on the floor the officers found $173 in currency, and under a blanket on the bed the officers found $32.75 in loose silver, a loaded pistol with extra cartridges and also three watches and a magnifying glass which were subsequently identified as the articles in the cigar box taken from the Goldstein store. A total of $209.65 in money was found, including the two rolls of nickels. Appellant was reaching under the blanket of the bed and had refused to stop when he was shot.

Appellant and Reynolds, after they were wounded, were promptly taken to the Homer G. Phillips Hospital where, within an hour after the holdup, appellant was identified by Mike and Meyer Goldstein, John Richardson and Frank Burnett as being the robber that held the pistol at the time of the robbery. Theodore Douglas did not accompany the other witnesses to the hospital. Appellant was also identified at the trial by Mike Goldstein, John Richardson and Frank Burnett as being the robber that held the gun. Meyer Goldstein said that the men he saw at the hospital looked like the robbers. Reynolds was identified as appellant's companion and a participant in the robbery. At the hospital the officers took $155 in currency from appellant's right front trouser's pocket.

Appellant did not testify in his own defense but Reynolds, who was also charged by a separate information with the same offense, testified that he used the gun and conducted the robbery in question; that he was assisted by one Ernest Caldwell; that, after the robbery, he, Reynolds, had gone to appellant's home to get a hat and jacket and change clothes; and that he put the gun, silver and watches under the blanket and the currency on the bed when the police arrived.

Appellant first contends that 'the court erred in failing to give to the jury an instruction dealing with the law of circumstantial evidence * * * as there was no direct evidence identifying the defendant as to three of the prior convictions offered in evidence.' Five prior felony convictions (all in the Circuit Court of the City of St. Louis) were shown, together with imprisonment and discharge upon lawful compliance with the respective sentences. The various convictions were in the name of Alonzo Hands and appellant (named in the information here as Alonzo Maurice Hands) was shown to have been the very person imprisoned in the workhouse of the city of St. Louis under the first two convictions. The city workhouse records showed appellant was 'received at the city workhouse 11-17-37.' This record further showed: 'Alonzo Hands, given address, of 3635 Windsor. Colored. Age, 17. Male. * * * Baptist. * * * farmer. Single. Born in America. Five foot eight and a half inches tall. Weight, a hundred and forty-three pounds.' No witness testified that the appellant was the person convicted and who served the sentences in the last three convictions shown. The several alleged convictions of appellant and the service of sentences and discharges therefrom were submitted to the jury in an instruction framed in the disjunctive so that a finding of only one of the several prior felony convictions, service and discharge was necessary to require the imposition of the maximum term of imprisonment in the event appellant was found guilty of the instant robbery charge.

Throughout the trial of this cause appellant was continuously referred to as 'Alonzo Hands.' His own counsel referred to him as Alonzo Hands. Witness Reynolds referred to appellant as Maurice Hands. The certified copy of the records from the Missouri state penitentiary with reference to the Alonzo Hands who served the sentences in the last three cases showed the following: 'Alonzo Hands Colored Age 20 Nativity Missouri Trade Farmer Height 5 feet 8 1/2 inches. Length of foot, inches 10 1/2 Hair B & K Eyes Maroon Complexion Medium Brown Education 8 grades Weight 150 lbs. * * * When received March 28, 1940.'

At the close of all the evidence and prior to the submission of the cause, appellant's counsel objected to the court's failure to give 'an instruction on the law of circumstantial evidence.' In the motion for a new trial appellant said, 'the court erred in failing to give the jury a circumstantial evidence instruction.' There was no reference at any time to the specific matter now presented, to wit, that the identity of appellant with the person named in the last three prior convictions was based upon circumstantial evidence and that an instruction thereon was required. Proof of the substantive offense here was not based upon circumstantial evidence, but it was based upon direct testimony of witnesses who saw the robbery committed and who identified the robbers. Appellant admits that 'a charge of a prior conviction has been said not to constitute a part of the substantive offense. State v. Ward, 356 Mo. 499, 202 S.W.2d 46, 49,' but appellant insists that since prior convictions, in so far as they affect punishment, must be alleged and proved as other facts, the appellant was entitled to an instruction on circumstantial evidence on the issue of identity as far as the last three convictions were concerned. However, the evidence in question was direct evidence that appellant had been so convicted, had served the sentences and had been discharged on compliance therewith. State v. Pigg, 312 Mo. 212, 278 S.W. 1030, 1034; State v. Blankenship, 330 Mo. 792, 50 S.W.2d 1024, 1026. Further, it has often been held that 'the middle name of an individual forms no part of the Christian name.' State v. Martin, 10 Mo. 391; Keaton v. Jorndt, 220 Mo. 117, 133, 119 S.W. 629; Miller v. Keaton, 236 Mo. 694, 710, 139 S.W. 158. The record showed the age and description of the person who served the sentences under both the first two and the last three convictions and appellant had been shown to be the person who served the first two sentences. It was therefore unnecessary to rely solely upon the rule that the identity of the names was prima facie sufficient evidence of the identity of the persons, so that it devolved upon him who would deny identity to overcome the presumption. State v. Court, 225 Mo. 609, 125 S.W. 451; State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 334. No instruction on circumstantial evidence was required.

Appellant assigns error on the four verdict forms furnished by the court to the jury. Appellant says that 'each verdict form contained the following. 'Five P. C. Robbery, first degree, DDW' which constituted a comment on the evidence.' Appellant also complains that the form selected and signed by the jury 'assumed the fact of prior convictions and implored the jury in essence to sentence the defendant to the penitentiary for the remainder of his life.' The forms of verdict furnished to the jury, as certified by the Clerk of the Circuit Court, show the style of the cause, the court, venue and charge, the latter, as follows: 'On information for 5 prior convictions and robbery 1st degree by means of a dangerous and deadly weapon.' The particular form of verdict was then set out below. Four different verdict forms were furnished, including one without a finding of prior convictions and...