State v. Hirsack, 55049

• Decision Date: 12 April 1971
• Docket Number: No. 55049,No. 2,55049,2
• Citation: 465 S.W.2d 543
• Parties: STATE of Missouri, Respondent, v. Dale HIRSACK, Appellant
• Court: Missouri Supreme Court

Page 543

465 S.W.2d 543

STATE of Missouri, Respondent, v. Dale HIRSACK, Appellant.

No. 55049.

Supreme Court of Missouri, Division No. 2.

April 12, 1971.

John C. Danforth, Atty. Gen., John W. Cowden, Asst. Atty. Gen., Jefferson City, for respondent.

B. Daniel Simon, Columbia, for appellant.

BARRETT, Commissioner.

Dale Hirsack, age 42, with a long prior criminal record, has been found guilty of robbery with a dangerous weapon and sentenced to ten years' imprisonment. Despite his expressed gratitude for the light punishment he has perfected an appeal to this court. He does not question the sufficiency of the evidence and it is sufficient to say that about 4 o'clock on October 31, 1968, he entered the Red Barn Pantry and at gun point held up Barbara Bates, age 18, and Ron Snider and took from them $83.80. Two questions have been briefed and argued here on his behalf, one relating to a certain juror and the other relating to a remark of the trial judge to the jury. (It may be noted in passing that present court-appointed counsel has represented appellant on this appeal only.)

The first assignment of error has to do with the failure on voir dire of Juror Michael A. Pistone to reveal the fact that some months prior to this trial his father, a bartender, had been wounded by a gunman in a robbery and subsequently died as a result of the wound. He asserts that by reason of the juror's failure to reveal the circumstances of his father's death he was denied a valid challenge for cause and was thus compelled to exercise a peremptory challenge. In his brief appellant concedes that there is no proof of Juror Pistone's prejudice and that he relies on the 'mere tragedy itself' which he says 'raises doubts as to Mr. Pistone's qualifications.' In this connection his lawyer says 'In summary, it must be admitted that we have no information available other than that venireman Michael A. Pistone withheld the information that his father had recently been a cretically wounded victim of an armed robbery.' The problem arose in this background. Defendant's counsel made this general inquiry of the jury panel, 'Now is there any member of this panel that himself or some immediate member of the family has been either robbed, burglarized or raped or any major injury or crime? I am not talking about police court matters. I am not speaking now of vehicular rear-end collisions. I am not talking about neighborhood fights or things of that nature or dog bites, but any serious offense involving either yourself or a member of your family.' (Emphasis supplied.)

In response to this general inquiry three jurors responded, Mr. Duensing, Mr. Kent and Mr. Beach. Mr. Duensing said, 'I was in a holdup at the company I work for about seven or eight years ago.' The robbers were not apprehended and Mr. Duensing responded that he did not think the experience prejudiced him, he said, 'I don't think so. I don't know why it would affect me.' Mr. Kent said, 'I was held up in the early part of January * * * on the Metro, by two armed gunmen. They have been caught but I never attended the proceedings, but I am positively sure that it would make no difference in my function down here, what took place in January.' Defendant's counsel responded, 'Thank you very much.' Mr. Beach said 'I have been held up and robbed. * * * I was held up on a cab. I drive a cab. A passenger held me up one time. * * * About three years ago.' In response to the question whether his having been the victim of a robbery would make it difficult to fairly and impartially try the case Mr. Beach said, 'No, I don't think so.' Defense counsel, incidentally, a well-known lawyer and former prosecuting attorney of Jackson County, then said, 'Any other person? I take it by your silence that neither you nor any immediate members of your family have been involved in major offenses.' Then counsel directed another general question to the panel as to connections with law enforcement officers and Mr. Beach gave the information that his son was a Kansas City policeman. After this response defense counsel, further defining 'immediate member of their family,' made this inquiry, 'Anyone else that has an immediate member of their family, son-in-law, brother-in-law, that sort of thing, who has been with any of these police agencies * * *.' In questioning the panel as to any possible connection with lawyers Mr. Pistone told of his acquaintance with Bill Teasdale (a member of some firm). When the court directed counsel to begin 'asking individual questions,' it developed that Mr. Pistone, employed by Webco Bearings for 13 years as a salesman, was married and had five children. The court then directed the jury's attention to the fact that twelve of their number would be chosen from the panel of thirty-four and they were excused while the challenges were made. The defendant peremptorily challenged twelve jurors including Mr. Duensing, Mr. Kent, Mr. Beach and Mr. Pistone.

There is no doubt or question as to the rule upon which appellant relies, aside from the statutory grounds of challenges for cause he is entitled to a qualified panel and, as in this case, may not be compelled to exercise peremptory challenges to rid the panel of disqualified jurors (State v. DeClue, Mo., 400 S.W.2d 50) and 'prejudice of a juror, concealed on examination and discovered only after verdict, is ground for a new trial.' State v. Kirkpatrick, Mo., 428 S.W.2d 513, 516. The governing rules need not be considered in depth, that has most recently been...