State v. Hartwell

• Decision Date: 10 September 1956
• Docket Number: No. 2,No. 45117,45117,2
• Parties: STATE of Missouri, Respondent, v. Jackie Lee HARTWELL, Appellant
• Court: Missouri Supreme Court

Page 313

293 S.W.2d 313

STATE of Missouri, Respondent, v. Jackie Lee HARTWELL, Appellant.

No. 45117.

Supreme Court of Missouri, Division No. 2.

Sept. 10, 1956.

William Kelleher, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Paul McGhee, Asst. Atty. Gen., for respondent.

EAGER, Presiding Judge.

Defendant and one John Sanders were charged with first degree robbery by information filed in the City of St. Louis. A severance was granted defendant and, upon trial, he was convicted and sentenced to five years in the penitentiary. His counsel filed a motion for new trial in due time, but has filed no brief. We proceed, therefore, to consider such of the assignments of the motion for new trial as are sufficient under 42 V.A.M.S.Supreme Court Rules, rule 27.20, as well as the formal parts of the record. State v. Ready, Mo., 251 S.W.2d 680.

On behalf of the state one Robert Hennings, 23 years of age and a resident of the City of St. Louis, testified: that he owned a 1951 Cadillac car, and that on Sunday morning, October 17, 1954, he drove in it alone to the 4600 block on Easton Avenue at some time around noon, parked the car, and went into 'Maury's' automobile accessory store to buy a 'continental kit' for the car; this store was located in that block and on the same side of the street; that at that time he had in his right trousers pocket $122 in bills and some change, all belonging to him; he was in the store a few minutes, but did not buy the kit; when he came out and approached his car he saw a man sitting on the right side of the front seat; the man 'beckoned' him to come around and get in the car, and said he had something he wanted to show Hennings; the latter did get in the driver's seat, and this man immediately told him that he was from Amarillo, Texas, and was trying to get home, and at the same time showed him a .32 caliber revolver, took out the loaded shells, and asked Hennings if he wanted to buy it; he, Hennings, had never seen the gun before, and at the time he only saw one person in the car; the man was shabbily dressed in a wrinkled suit and hat and a khaki shirt, and Hennings hesitated, took and handled the gun, and talked to the man a little he then handed the gun back, told the man that he was not interested in it, and asked him to get out of the car; at that moment Hennings heard a voice from the back of the car and felt something in the back of his neck; this thing he felt was metal, and the man in the back said, 'don't turn around'; Hennings had started to turn, but stopped; the voice then told the man in the front seat to 'go into my pocket and see if I had any money'; the man in front, who was positively identified by Hennings as the defendant, reached into Hennings' pocket and took his money, including the $122 in bills and some change; the man in back then told Hennings to drive across the street, which he did, and both men jumped out, ran west and were picked up in a 'bluish' Mercury, which drove up to them and turned at the corner; Hennings drove around the block trying to find the car and get the license number, but was unsucessful; he then went directly to the Deer Street Police Station and reported the matter.

Defendant, Sanders and one Rigsby were arrested by the St. Louis police on the next Saturday while driving in a blue Mercury; in the trunk of the car was found some clothing, including a wrinkled blue pin-striped suit and hat, both of which were positively identified as those worn by defendant at the time of the robbery; in fact, defendant admitted they were his. At Rigsby's home the police found a .32 caliber revolver which was also identified by Hennings as the one which defendant tried to sell to him. Hennings first identified defendant at the police station on the day after his arrest; he also identified another of the three as the man who had been in the back of the car, Hennings having seen him in the rear vision mirror.

Defendant testified: that he and his two companions went out to the neighborhood in question on that morning to 'gamble'; that he approached Hennings when the latter came out of the store, said that he had gotten in from Mississippi and asked for directions to a non-existent hotel and talked about meeting a girl; he then gave a signal to Sanders who came up and participated in the conversation; that all three then got in Hennings' car and drove around a little, Sanders supposedly tried to call some girls, and they came back to the original location; that Sanders suggested gambling and that they proceeded to play some kind of a three-card game, while sitting in the car; that Hennings, after winning $4, produced the pistol in question from under the car seat and lost it, along with $8 in money, on the final bet; that he and Sanders then left the car and Rigsby picked them up, complaining because they had won a pistol which might cause them trouble 'in St. Louis.' Defendant testified, also, that he lived in San Antonio, Texas, had been in St. Louis about seven days, had not worked there, and said, 'We wasn't intending to stay too long.' He denied taking any money away from Hennings, and testified that he merely won a net of $4 and the revolver from him by gambling. Rigsby corroborated the defendant as to the circumstances generally, he apparently having remained in the Mercury car.

There are seven assignments of error in defendant's motion for new trial, which we shall consider in order. The first is that the court erred in allowing the name of Morris Goldberg to be endorsed on the information during the trial, thus depriving defendant of the 'right of deposition or investigation.' This was done on application of the assistant circuit attorney after the jury was empaneled but before the opening statement of the state was made; counsel then stated that the witness' testimony would merely be corroborative of that of Hennings. In fact, Goldberg merely testified that Hennings was in his store, priced the kit, but did not buy it and left, and that a few minutes later he saw him across the street talking to a couple of colored men 'by his car'; he did not even identify the two men. We fail to see how the use of this testimony could have been prejudicially erroneous. In some respects it was corroborative of defendant. Under Section 545.070 RSMo 1949, V.A.M.S., the trial court has a very considerable discretion in permitting the endorsement of the names of additional witnesses upon the indictment or information; State v. Hands, Mo., 260 S.W.2d 14, 20; State v. Farris, Mo., 243 S.W.2d 983, 986-987. Here no affidavit of surprise or application for continuance was filed and certainly in the absence of substantial prejudice the court would not be justified in a finding of error. State v. Lindsey, Mo., 80 S.W.2d 123; State v. Baker, 318 Mo. 542, 300 S.W. 699; State v. Cain, Mo., 37 S.W.2d 416.

Next, defendant complains that the assistant circuit attorney was permitted, over objection, to cross-examine defendant 'on matters * * * outside of the examination in chief.' No pages of the transcript are pointed out, but since there was only one such objection which was overruled, we consider the assignment. The question was: 'When was the last time you worked,' and the eventual answer was: just before he 'left home,' about a month and a half before the occurrences in question. Previously defendant had testified on cross-examination, and in response to questions to which there were no objections, that 'we had been' in St. Louis about seven days, that 'we hadn't found no job yet, but we was going to get one,' and that he had about $49 when arrested. Such prior testimony may not, of course, extend the scope of the direct examination, but it may show that there was no prejudice inherent in the ruling complained of. The cross-examination of a defendant need not be confined to a categorical review of the matters stated in direct examination, but may cover any matter within the fair purview of the direct examination. State v. Lemon, Mo., 263 S.W. 186; State v. Wilson, 321 Mo. 564, 12 S.W.2d 445; State v. Revard, 341 Mo. 170, 106 S.W.2d 906; State v. Glazebrook, Mo., 242 S.W. 928; State v. Ferguson, Mo., 183 S.W. 336. Mere incidental inquiries are not generally prejudicial; State v. Abbott, Mo., 245 S.W.2d 876. And inquiries made to test the accuracy of defendant's testimony or memory are permissible. Id. We see no error in this ruling and certainly no prejudice from it.

After the witness Rigsby had...