State v. Hill

• Citation: 371 S.W.2d 278
• Decision Date: 14 October 1963
• Docket Number: No. 1,No. 50115,50115,1
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Sterling HILL, Jr., Defendant-Appellant
• Court: Missouri Supreme Court

Page 278

371 S.W.2d 278

STATE of Missouri, Plaintiff-Respondent, v. Sterling HILL, Jr., Defendant-Appellant.

No. 50115.

Supreme Court of Missouri, Division No. 1.

Oct. 14, 1963.

John P. Haley, Jr., Kansas City, for appellant.

Thomas F. Eagleton, Atty. Gen., Jefferson City, James W. Steele, Sp. Asst. Atty. Gen., St. Joseph, for respondent.

HYDE, Judge.

Defendant, charged under the Habitual Criminal Act (Sec. 556.280), was convicted of robbery in the first degree and sentenced to 25 years' imprisonment. Secs. 560.120 and 560.135 (statutory references are to RSMo and V.A.M.S.). Defendant has appealed but has filed no brief so we consider all grounds stated in his motion for new trial made in accordance with Supreme Court Rule 27.20, V.A.M.R., which serve as assignments of error on appeal. (See also Rule 28.02.)

The first assignment is that the State's evidence was insufficient to make a case against defendant, claiming insufficiency of identification, discrepancy in the amount of money claimed to have been taken with the amount recovered and failure to connect defendant with an abandoned car and shotgun found by the police. The following summary of the State's evidence shows this assignment to be without merit.

A few minutes before midnight on December 11, 1962, Robert Eppstein, manager of a grocery, delicatessen and liquor store in Kansas City (closing time 1:30 A.M.) was in the store with a clerk, William Mickens, when two white men came in; the taller one with a sheer stocking over his head, holding a sawed-off shotgun, and the shorter one with a yellow scarf wrapped around his mouth which fell down when he talked. Defendant was identified as the shorter man by both Eppstein and Mickens at the police station later that night and at the trial. The man with the shotgun made Eppstein open the cash register and the shorter man took out the money. The taller man struck Eppstein with the shotgun when he said he could not open the safe. Eppstein then told him the safe was open and the shorter man took the money from it. The men made Eppstein and Mickens and three customers lie down in a narrow aisle on top of each other and the man with the shotgun said: 'Don't move for five minutes or we will blow your heads off.' Eppstein called the police as soon as he could get up. Defendant and his companion (who was also identified at the police station, as the taller man involved, by Eppstein and Mickens) were arrested later that night under circumstances hereinafter stated.

Officer Theisen, operating a police car, received a radio report of the robbery about midnight and soon saw two white men in a white Chevrolet, stopped about ten blocks south of the robbed store (particularly noticed because this was a colored area), who took off when he approached. Two other officers, who had also received radio reports, soon found the car abandoned at another location and found a nylon stocking and a yellow scarf in the car. A dog crew was called and the dog followed the scent from the car to a place where a shotgun with some loaded shells was found. The officers also found money under the left front door of the abandoned car and a number of bills outside. They followed a trail of bills to the south but the wind was blowing and some bills were scattered. A cab had been called to come to a house in the neighborhood and the police learned about this when the cab came to where they were in the street. The cab driver drove past the house and came back on instructions from police, reporting that he had seen two men start toward the cab from the house. Two policemen then took the cab, drove to the house and defendant and his companion came out, approached the cab and were arrested. (These two men had gone to the house and asked to use the telephone to call a cab.) Two other policemen who followed the cab on foot put handcuffs on them and searched them. Defendant had money stuffed in his pockets, under his jacket and in his clothing. A total of $1,519.47 was recovered ($2,526.48 was reported missing by Eppstein); bills in the amount of $1,040.00 wrapped in a package with a bank deposit slip attached (which Eppstein said he had put in the safe) were among those recovered, as was also a twenty-dollar bill with a note stapled to it (stating it was from one customer to be delivered to another) which Eppstein had written, attached to the bill and placed in a drawer near the cash register. Eppstein had seen defendant open this drawer and this bill with the attached note was found in his possession.

Defendant makes three contentions concerning insufficiency of the evidence; the first that Eppstein based his identification on having seen defendant in the store on the Thursday or Friday preceding the robbery, when defendant had testimony indicating that he was in jail in Kansas City, Kansas. This contention is without merit for several reasons; first, Eppstein's identification at the police station on the night of the robbery and at the trial was positive on the basis of seeing defendant in the store at the time of robbery (as was Micken's identification); second, defendant's witness was indefinite about the time defendant got out of jail; third, Eppstein said he did not know what day he previously had seen defendant in the store only saying he had been there within the week prior to the robbery. The store's customers were mostly Negroes so he particularly noticed a white customer. Defendant's second contention as to identity is that Eppstein stated the bill with the note attached to it was a twenty-dollar bill while one of the officers thought it was a ten-dollar bill. Another officer did not remember the donomination. The fact that the note written by Eppstein and attached to a bill was found in defendant's possession that night was strong evidence of identify to defendant as one of the robbers. The fact that about $1000.00 of the money reported lost was not returned does not indicate defendant was not one of the robbers, especially in view of the evidence as to bills being scattered in the street. Likewise defendant's third contention, that the police dog was only able to lead the officers to a shotgun but not to defendant, does not show failure to connect him with the robbery, especially in view of the evidence showing defendant was found in the same block and arrested about the time the shotgun was found. All of these claimed discrepancies were matters for the jury to determine and we hold there was ample substantial evidence to make a case for the jury and to support their finding that defendant participated in the robbery.

Assignments 2, 3, 4 and 7 claim trial errors. Assignment 2 claims erroneous inflammatory language by the prosecuting attorney in his argument to the effect that 'this shotgun was placed against the head,' saying this was outside the record. However, we find ample evidence in the record to justify such a statement. Mickens said the shotgun was 'right in my neck'. Eppstein answered 'yes' when asked if he was put in fear 'when this man was holding the shotgun against your head.' He had previously stated that the man put the shotgun on the head of a woman customer and told her 'to get back or he would blow her head off.' He also said the man 'swung the gun at my head,' struck him with it and said 'now, open the safe or I will blow your head off.' Assignment 3 claims error in restricting cross-examination of Eppstein as to the reason he was no longer employed at the store, suggesting that it had some connection with the amount of money reported lost with that recovered. 'The trial court is permitted much discretion in determining and limiting the scope of cross-examination,' especially 'as to collateral matters.' See State v. Spikes, Mo.Sup., 367 S.W.2d 515, 516, and cases cited. However, soon after the court sustained an objection to the question of whether there was any special reason for his leaving, the following question was asked and answered on re-direct examination: 'Q. Mr. Eppstein, I haven't the faintest idea of why you left out there, but would you tell the court and jury whether it had anything to do with the robbery or the loss? A. None whatsoever, the corporation was sold and the new owners took over and I was out of work.' We find no abuse of discretion in the court's action. Assignment 4 complains of inadmissible evidence being improperly permitted but does not specify what evidence is meant and so failing to comply with Rule 27.20(a) preserves nothing for appellate review. However, we have carefully read the record, with our...