State v. Harris
| Decision Date | 14 May 1962 |
| Docket Number | No. 1,No. 49082,49082,1 |
| Parties | STATE of Missouri, Respondent, v. Herbert William HARRIS, Jr., Appellant |
| Court | Missouri Supreme Court |
Cecil Block, St. Louis, for appellant.
Thomas F. Eagleton Atty. Gen., Carl R. Gaertner, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
COIL, Commissioner.
Herbert W. Harris, Jr., was convicted of robbery in the first degree with a dangerous and deadly weapon and, in accordance with the jury's verdict, sentenced to fifteen years' imprisonment. He has appealed but has filed no brief, ans so we examine the assignments of his new trial motion.
The state's evidence tended to show that about 9:15 on the night of February 5, 1960, three men entered the Reigel Service Station at 3720 North Kingshighway in St. Louis and there accosted Arnold Johnson, an attendant on duty. One of the men, later identified as the defendant, had a pistol in his hand and announced, 'This is a stick-up.' The three forced Johnson into the washroom, took from him more than $100 of his employer's money, and beat him with their fists. Defendant was positively identified as one of the robbers both prior to and at the trial.
It is apparent that a jury reasonably could have found defendant guilty of robbery in the first degree with a dangerous and deadly weapon as charged and, consequently, defendant's new trial assignments 2 and 6, asserting error in the refusal of the court to direct verdicts of acquittal, are without merit.
After the lawyers had exercised their peremptory challenges and twelve jurors thereby had been selected but not sworn, court was adjourned until the following morning when defendant's counsel, out of the hearing of the jury, announced that inadvertently he had mistakenly failed to peremptorily challenge juror Stephens and requested that the court then excuse Stephens and substitute Mrs. Hart who had been on the panel the day before. The state's attorney was agreeable but the court denied the request. Prior to the court's instructing the jury, defendant objected to giving any instructions to or to permitting the case to go to the jury for the reason that it was 'not a true and lawful jury in accordance with the desire and wishes of the defendant' on account of the incident hereinabove described, and that thereby defendant had not had a fair and impartial trial as guaranteed by the state and federal constitutions. Defendant's new trial assignments 1 and 5 assert that the court erred in refusing to permit the substitution of panel member Hart for selected but unsworn juror Stephens and in failing to declare a mistrial and discharge the jury as requested by defendant by reason of the fact that it was not a lawfully selected jury.
The record shows that defendant did not request that the court discharge the jury or take any other action after denial of his request for the exchange. Defendant's counsel indicated by his statement (when he made his request that he would like to have juror Stephens excused and 'have brought over Mrs. Delores L. Hart') that he was aware of the well-known fact...
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