State v. Johnson

• Decision Date: 08 October 1973
• Docket Number: No. 1,No. 57888,57888,1
• Citation: 499 S.W.2d 371
• Parties: STATE of Missouri, Respondent, v. Bonnide Wilford JOHNSON, Appellant
• Court: Missouri Supreme Court

Page 371

499 S.W.2d 371

STATE of Missouri, Respondent, v. Bonnide Wilford JOHNSON, Appellant.

No. 57888.

Supreme Court of Missouri, Division No. 1.

Oct. 8, 1973.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Richard D. Mills, Michael W. Dunlop, St. Louis, for appellant.

HIGGINS, Commissioner.

Bonnide Wilford Johnson, charged with two counts of robbery, first degree, by means of a dangerous and deadly weapon, was convicted on both counts by a jury which assessed his punishment at fifteen years' imprisonment on each count. Sentence and judgment were rendered pursuant to the verdict; and the court further ordered that the sentences run concurrently and that defendant be credited with jail time prior to conviction. §§ 560.120, 560.135, RSMo 1969, V.A.M.S., Rule 24.04, V.A.M.R. Appellant asserts presence of questions involving construction of the Constitutions of the United States and Missouri.

By Point III appellant attacks the sufficiency of the evidence asserting, in particular, 'that the State failed to prove that appellant's crime was committed by means of a dangerous and deadly weapon as charged.'

Count I of the indictment alleged that Bonnide Wilford Johnson, on June 8, 1971, in the City of St. Louis, feloniously and by means of a dangerous and deadly weapon, to-wit: two hand guns, did rob and take $94, the property of Chicago Metropolitan Mutual Assurance Company in the care and custody of Mary Oldham, by putting her in fear of immediate injury to her person. Count II was identical except for the amount taken, $123, and the victim, Howard McGruder.

A brief statement of the evidence demonstrates that the State made a submissible case of robbery, first degree, by means of a dangerous and deadly weapon, on both counts of the indictment.

On June 8, 1971, Mary Oldham was a secretary at the Chicago Metropolitan Mutual Assurance Company, 2801 North Kingshighway, St. Louis, Missouri. Around 9 a.m., two men entered her office and the smaller of the two, holding a revolver, jumped a counter, announcing 'this is a stick-up.' Pursuant to the robber's demand, Mrs. Oldham gave him all the company's loose money in her possession, about $80, and the petty cash amounting to $8.11. She was then ordered to the back of the office and to lie down, at which time she saw that both men had guns, identified as Exhibits 6 and 7, taken from defendant and the other man. When police officers arrived about twenty minutes after the robbery, Mrs. Oldham went outside and saw both of the robbers in police custody. The smaller man was seated in the police car. Mrs. Oldham identified defendant as the smaller man at trial.

Howard McGruder was a collector for the Chicago Metropolitan Mutual Assurance Company and, at the time and place in question, was in the agency room behind the front office counting money collected from company accounts the previous night amounting to $119. A man approached with an automatic gun, Exhibit 7, announced 'this is a stick-up,' told all the agents to lie down, and took the $119. Mr. McGruder observed the man to cock the gun, 'he pulled the chamber (slide) back,' prior to making his demands. Mr. McGruder also saw defendant seated in the police car but had not seen him during the robbery.

Charles Cotton, another employee of the assurance company, was in a rear office and heard noise out front. He peeped through a door and saw a man standing over the others on the floor. He then locked the door and called the police. The police arrived within ten minutes.

Leondus Bates, a St. Louis police officer at the time in question, and his partner responded to the call for police help. Upon arrival he saw one man two or three feet inside the door and saw a second coming from the back room. The first man was Richard Irons from whom he took a 45-caliber automatic hand gun; the second was defendant with a bag and small-caliber gun which he later found on the floor of the building. This gun, Exhibit 6, was loaded but in a condition with rendered it impossible to fire. The other gun, Exhibit 7, was also loaded. Its condition was not described beyond that given by Mr. McGruder.

Appellant's argument under Point III is that a weapon, Exhibit 6, which cannot be fired cannot be considered a dangerous and deadly weapon.

This argument overlooks the presence and use of Exhibit 7. The evidence showed it to be a 45-caliber automatic, loaded with bullets, with its 'cocking' mechanism operative, being used to commit a robbery. These circumstances permitted the jury to infer that Exhibit 7 was a dangerous and deadly weapon. State v. Kowertz, 324 Mo. 748, 25 S.W.2d 113 (1930); State v. Hagerman, 244 S.W.2d 49 (Mo.1951).

By Point I appellant charges the court erred in overruling his motion to discharge the trial jury 'because there was arbitrary exclusion of black persons from the jury by the State which precluded the * * * right to a fair and impartial trial.'

This point is presented without supporting authorities and appellant has made no attempt to demonstrate a scheme of discrimination through the State's use of its peremptory challenges. It also appears from appellant's presentation that even though the trial jury consisted of twelve white persons, there were black persons in the venire, one of whom was stricken by the appellant. Appellant's assertion does not prove itself, State v. Dowe, 432 S.W.2d 272 (Mo.1968), State v. Mooring, 445 S.W.2d 303 (Mo.1969); and this case is thus controlled by the rule of State v. Davison, 457 S.W.2d 674 (Mo.1970), following Swain v. Alabama, 380 U.S. 202, 222, 85 S.Ct. 824, 837, 13 L.Ed. 759:

'The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair...