State v. Johnson

• Decision Date: 13 February 1956
• Docket Number: No. 44832,No. 2,44832,2
• Citation: 286 S.W.2d 787
• Parties: STATE of Missouri, Respondent, v. Ray Lee JOHNSON, Appellant
• Court: Missouri Supreme Court

Page 787

286 S.W.2d 787

STATE of Missouri, Respondent, v. Ray Lee JOHNSON, Appellant.

No. 44832.

Supreme Court of Missouri, Division No. 2.

Feb. 13, 1956.

Appellant pro se.

John M. Dalton, Atty. Gen., W. Don Kennedy, Asst. Atty. Gen., for respondent.

EAGER, Presiding Judge.

Defendant was indicted, with two others, for robbery in the first degree by means of a dangerous and deadly weapon. Sections 560.120 and 560.135 RSMo 1949, V.A.M.S. The court appointed counsel for him, and also granted him a severance. On trial he was found guilty, and thereafter was sentenced to a term of ten years in the penitentiary. He has appealed therefrom.

The defendant has filed here, pro se, sundry miscellaneous papers, none of which could by any conception serve as a brief under our rules. His appointed counsel, however, filed a motion for new trial containing sixty-three assignments of supposed error before retiring from the scene, and we shall proceed to consider such of those assignments as are alleged in sufficient detail and particularity under Rule 27.20 of this court. Many of these will be considered in analogous groups. The transcript is voluminous.

We need not recite the facts here in great detail. Since most of the assertions of error concern the admission or exclusion of evidence, certain facts will necessarily be referred to later. Defendant was positively identified as the first of three men who entered the office of the Altmayer Real Estate Company, all carrying pistols, about 5:30 p. m. on February 12, 1954, and robbed Mr. Altmayer personally as well as the office safe. The location was in a more or less suburban area of St. Louis. There was evidence that defendant personally and at gun-point demanded the money, forced Mr. Altmayer to lie on the floor and took his personal money, and that he later raked out the contents of the safe, including a substantial amount in coins as well as paper money, and put it in his pocket. The others took certain other things, but did not go to the safe. After the robbery the men ran, first to a car which they did not enter, and then into the surrounding neighborhood. While fleeing, one of them stopped and fired a shot in the general direction of Mr. Altmayer who had attempted to follow them. The police arrived in a matter of minutes. Defendant and one Paul Cramin (a codefendant) were arrested while walking along a street about five blocks from the scene of the holdup at approximately 6:45 p. m.; the arresting officer testified that as he approached defendant, the latter pulled a handful of change from his pocket and threw it into a vacant lot or area, and that he recovered some of the coins. No weapons were found on defendant or Cramin. Merl Sack, the third man indicted, was found by other officers about 6:30 p. m. in the garage of a private home in the general neighborhood. He was lying on top of an over-head door which was (of course) in a raised position. All three men were taken back to the place of the robbery to be viewed by Mr. Altmayer, his daughter Catherine, and a salesman, all of whom had been present at the robbery. Defendant and Cramin then had no hats. All three were also viewed later by Mr. and Miss Altmayer at the police station. The money found on defendant, both change and currency, was preserved. The next morning a builder-carpenter, who had about completed a new house in the same neighborhood, found on a wooden sawhorse in the basement of the house two gray hats, a .38 caliber Smith and Wesson revolver and a .32 caliber Colt automatic pistol; these were lying partly on his jacket. The house had not been locked, and the articles had not been there when the witness left about 4:30 on the previous afternoon. He immediately, and without touching these articles, called the police, who also found certain partly burned papers, including checks, a billfold, and the lining of a hat. The latter object was on top of a heating duct, as were also the billfold and some of the partly burned papers. Photographs of these objects were made in their original locations and identifying initials or markings were placed on them. Both guns were found to be loaded, the revolver with five live shells and one empty, the automatic with seven live shells.

Approximately two and a half hours after the arrest of Sack, police officers went back to the garage where he had been arrested and found a .22 caliber revolver, fully loaded, lying on a rafter near where he had been perched. On the morning after the robbery, the owner of the garage in which Sack was found, noticed, while piling some lumber, a leather folder or pocket-case on top of the concrete block wall of the garage. He called the police without disturbing it, and the officers then found also a man's wrist watch behind a joist above the over-head door, some three or four feet from wherer the pistol had been found.

At the trial the defendant testified, and denied all participation in the robbery. He testified that he was elsewhere at the time of the robbery, with some corroboration from members of his family and a friend of the family. He also testified: that police officers struck him at various times and hung him over a door (all of which was specifically denied by the officers); that he requested a paraffin test of his hand; that he did not state that he ran from the scene of the robbery, as certain of the officers testified; that he was questioned until he finally said, 'I don't remember; I don't know nothin"; that he worked for most of the money he had when arrested, and won the rest playing poker in a tavern in East St. Louis on the previous night.

Defendant's motions for acquittal were properly overruled. The facts already recited show beyond all question that there was ample evidence from which the jury could find that defendant was one of those who perpetrated this robbery at gunpoint and by putting the victims in fear of immediate injury.

Certain assignments, as that the verdict was against the evidence and against the law, do not merit any consideration under Rule 27.20. The same is also true of the assignment that Instructions 1-8, inclusive, did not correctly and fully state all the law, were misleading and confusing, and assumed facts. Such blanket objections to instructions in a criminal motion for new trial will not be examined. State v. Jordan, Mo., 235 S.W.2d 379; State v. Murray, Mo., 280 S.W.2d 809, and cases there cited. The same is true of the general assignment on the admission of evidence.

Specific complaint is made of the admission in evidence of the .38 caliber Smith and Wesson revolver (Ex. No. 1) found in the basement of the new house, as related above; the objections were and are, in substance, that it was not sufficiently connected up with the defendant or with the crime, that it was irrelevant and immaterial, and that its admission was prejudicial. The exhibit was certainly not irrelevant; it was sufficiently identified as the gun which defendant carried in the robbery to make it admissible. Counsel complained at the trial that Mr. Altmayer merely said that it 'looked like' the gun, but actually the identification was stronger; the witness said that the front part (the handle being covered with the hand) looked 'very much' like the revolver in defendant's hand, and that it was 'very similar'; identification need not always be wholly unqualified in order to make evidence admissible. Wise v. Standard Oil Co. of Ind., Mo.App., 198 S.W.2d 1014, 1016, and cases cited. When we consider also the fact that this exhibit was found the next morning in a neighboring basement, wholly unexplained, along with a billfold and various partly burned papers which were positively identified as having been taken in the robbery, the admissiblity of the exhibit is clear. The weight of the identification was for the jury.

Exhibits 2, 3, 4 and 5 were photographs of the building where the robbery occurred and its surroundings; the objection to these is that they do not correctly portray the scenes as existing at the time of the robbery. We suppose this refers to the fact that the pictures were taken subsequent to the robbery and under different lighting conditions. The jury had all the facts, including these objections, and any such objection could only go to the weight of the evidence. The same is true of a similar objection to Exhibits 27, 28, 29 and 30, being photographs of the outside and inside of the garage where Sack was found and the house adjoining it, and to Exhibit 17, the house in the basement of which the various objects were found. These photographs were taken the next morning before any material changes could possibly have been made. Similar assignment of error is made as to Exhibits 7 and 8, being photographs of the car to which the robbers supposedly ran, but we cannot find that these were received in evidence. The same ruling would, in any event, apply. All such assignments are denied.

Error is also predicated on the admission into evidence of various articles: (A), found in the basement of the new house, along with the revolver, Exhibit 1, as follows: a gray hat identified as defendant's (Ex. 9); a gray hat identified as Cramin's (Ex. 10); a group of partly burned checks and other papers (Ex. 11); a billfold (Ex. 12); a single partly burned check (Ex. 13); shells taken from the .38 caliber revolver (Ex. 23); a .32 caliber Colt automatic (Ex. 24), and shells from that automatic (Ex. 25); and (B), articles found in the garage after Sack's arrest, as follows: the .22 caliber revolver found on a rafter (Ex. 31); the shells taken from it (Ex. 32); the leather folder or date book found by the owner the next morning (Ex. 15); and the wrist watch, also found the next morning (Ex. 14). The assignment of error now made to all of these is that they were not shown to have belonged to or to have been in the possession of the defendant or the codefendants, nor to have been used in the crime, and that they...