State v. Jones, KCD 28868.
| Decision Date | 14 November 1977 |
| Docket Number | No. KCD 28868.,KCD 28868. |
| Citation | 558 S.W.2d 246 |
| Parties | STATE of Missouri, Respondent, v. Bradford R. JONES, Appellant. |
| Court | Kansas Court of Appeals |
Roy W. Brown, John A. Wilson, Kansas City, for appellant.
John C. Ashcroft, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.
Appeal from judgment of guilty and sentence to 20 years' imprisonment for assault with intent to kill with malice. § 559.180, RSMo 1969. Jury returned verdict of guilty and court fixed punishment under the second offender act.
This is the third in a series of cases involving the appellant. See State v. Jones, No. 28,583, Mo.App., 558 S.W.2d 233 and No. 28,667, Mo.App., 558 S.W.2d 242 decided contemporaneously. The charge here arises out of a robbery by two persons of a Pizza Hut restaurant on Wornall Road in Kansas City on January 22, 1975. Two persons carrying guns entered the Pizza Hut at around 11:30 P.M. The lower part of their faces was covered with bandanas. One went to the cash register and took its contents. The other went behind the counter and approached an employee, Corwin Gohn, who was talking on the telephone. This man, described by another witness as the shorter of the two robbers, told Gohn, "We want the money." When Gohn turned his head, the robber shot him in the neck.
The robbers fled and police were called. A spent .22 caliber bullet was found some 8½' from the telephone used by Gohn.
On March 15, 1975, a police officer was told that an automobile had been struck by a second vehicle on a shopping center parking lot. The driver of the second vehicle was pointed out to the officer who approached the car and noticed that the driver appeared to be intoxicated. The driver was Gerald Wayne Miller. Miller was placed under arrest for driving while intoxicated. Search of Miller's person produced a .22 caliber pistol carried in his waistband. A blue and white bandana, a pair of wire cutters, a stocking cap and two pairs of leather gloves were found on Miller's person. A pillowcase was discovered under Miller's jacket. Miller was charged with careless driving, driving while intoxicated, driving while under the influence of narcotics and carrying a concealed weapon. He was released on bond.
Ballistics tests revealed that the .22 caliber bullet found at the Pizza Hut had been fired from the weapon found on Miller's person. On March 28, 1975, police arrested Miller, Miller's wife and appellant at the Millers' residence in Kansas City. Interrogation produced a statement from Miller, admitting the Pizza Hut robbery and naming appellant as the robber who shot Gohn. Interrogation of appellant ended with the questioned statement "What Jerry (Miller) says is true."
Appellant was charged with assault with malice by reason of the shooting of Gohn. Gohn and another employee testified concerning the robbery and shooting but neither could identify the assailants. Miller testified and said that appellant participated in the robbery and shot Gohn. Officer VanBuskirk testified to appellant's statement.
The only evidence offered by appellant was a Kansas City Police pick-up order issued in connection with the Pizza Hut robbery which described the persons sought as: "Race N" "Sex M."
The case was submitted to the jury at around noon on April 21, 1976. At 6:00 P.M., the jury returned to the courtroom and the foreman told the court that the jury stood 11 to 1. The court thereupon, over appellant's objection, gave the "hammer" instruction. At 6:30 P.M., the jury returned to the courtroom and announced that it had reached a verdict of guilty.
After his motion for new trial had been overruled, the trial court, having previously found the second offender act applicable, sentenced appellant to 20 years' imprisonment, the sentence to be consecutive to those imposed in No. 28,583 and No. 28,667. This appeal followed.
In this court, the...
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