State v. Kern
| Decision Date | 08 December 1969 |
| Docket Number | No. 1,No. 54110,54110,1 |
| Citation | 447 S.W.2d 571 |
| Parties | STATE of Missouri, Respondent, v. Joe Allen KERN, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.
Marion E. Lamb, Moberly, for appellant.
Joe Allen Kern, pro se.
WELBORN, Commissioner.
Appeal from 25-year sentence on jury verdict finding appellant, Joe Allen Kern, guilty of assault with intent to kill with malice. § 559.180, RSMo 1959, V.A.M.S.
The principals involved in the case were inmates of the Missouri Department of Corrections Medium Security Prison near Moberly. Donald James Helms and Billy Wayne Myers had joined in a burglary in Reynolds County, which had resulted in their sentences to the custody of the Department of Corrections. In the latter part of October, 1967, Helms was transferred to the Moberly prison. At that institution Helms met appellant, Joe Allen Kern, who was imprisoned for burglary and narcotics law violation. Kern wanted Helms to move to the building where he (Kern) was housed and 'be his kid.' At Kern's direction, Helms requested a housing change to Kern's hall, but the request was denied. Kern told Helms to renew his request and get the change or not come back. Helms told authorities of this ultimatum and Helms was placed in protective custody for three days.
Myers had arrived at Moberly on Monday, November 6, 1967. Helms told him of the problem with Kern. When Myers was released from quarantine on Thursday, November 9, Kern approached him and told him that he (Kern) was going to have Helms 'as his punk.' Myers told Kern that Helms did not want such an arrangement and that he would do what he could to help Helms. Kern told Myers that he would like to discuss the matter with him again.
The following morning, at around 9:00 A.M., Myers went to the vicinity of the gymnasium to talk to Kern about Helms. The two met there, in the presence of Bill Boyer, who accompanied Kern and another inmate, described by Myers as a Negro boxer, whose name was unknown to him. According to Myers, he and Kern walked side by side between the gym and the chapel. Myers described what then occurred:
'When we walked to the back door of the gym--I don't know the directions--but heading this way and the gym is on my right and the chapel is on my left, and when we got to the back door Kern was on my right and Boyer was on my left and I turned to face Joe Kern and he said he was going to have Don Helms to be his punk and I told him, I said, 'You can't do it, I understand that you have cigarettes and other items invested, that you have loaned him, and we will make some arrangement to reimburse you on those items, but leave him alone.' And he said to Boyer, 'Boyer, what do you think?' Boyer said, 'Whatever you do I'll back you up.' And Joe Kern, the words he said was,
Myers went to the prison hospital where he received surgical repair of a cut in his abdomen.
At approximately 9:20 A.M., a guard looking for an inmate who might appear to have been involved in a fight took Kern into custody in the vicinity of the handball court. He did so because of blood and grass stains on Kern's clothing. At around 10:30 A.M., the guard discovered a knife in a trash barrel between the gym and the chapel.
I
The state's evidence was adequate to support the above-recited version of the affair and was obviously sufficient to permit a finding by the jury that Kern was guilty of the offense charged. We do not weigh the state's evidence against the testimony of six of the appellant's fellowinmates that the defendant was playing handball or was at the handball courts during all of the time when the assault was claimed to have occurred. The credibility of those witnesses and of the defendant, who denied any assault on Myers, was for the jury. Nor is the submissibility of the state's case impaired by discrepancies in the testimony of the state's witnesses as to Kern's attire at the time of the offense. Myers unequivocally identified Kern as the man who attacked him with a knife. His testimony was sufficient to take the case to the jury.
II
Appellant contends that the knife found in the trash can was erroneously admitted in evidence because it was never properly identified as having any connection with the alleged crime. Myers, when asked to describe the knife in Kern's hand, stated:
He also said the knife looked like a homemade one and that he couldn't say how wide the blade was. The guard who discovered the knife offered in evidence stated that it 'looks like the weapon that I found.' After the guard had testified and the knife had been marked as an exhibit, Myers was recalled as a witness and the knife exhibited to him, with the inquiry whether he had seen it before. He replied, 'It looks familiar.'
Appellant argues that this testimony was not sufficient to permit the introduction of the knife into evidence. He contends that the tetimony was not positive enough to connect the knife with appellant.
Identification of a weapon allegedly used in committing a crime need not be wholly unqualified in order to make the instrument itself admissible. State v. Johnson, Mo.Sup., 286 S.W.2d 787, 791(3, 4); State v. Maxwell, Mo.Sup., 376 S.W.2d 170, 174(8). Although Myers did state originally that he would have difficulty in describing the knife because he saw it only briefly, his statement that he believed the knife offered was the one he saw previously in Kern's hands was sufficient, considered with other circumstances pertaining to the knife, to justify its introduction in evidence. State v. Johnson, supra; State v. Humphries, 350 Mo. 938, 169 S.W.2d 350, 352(6). The expression in terms of belief did not deprive Myers' testimony of probative value. State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 323(20, 21).
III
Appellant urges that the trial court erred in refusing to discharge the jury upon his motion on the grounds that he had been observed by the jury in irons.
The transcript shows that, when the trial resumed on the second day, appellant's counsel moved to discharge the jury 'for the reason that a prisoner was brought in the presence of the jurors this morning while still in irons.' The transcript does not show that the prisoner in question was the appellant. Another prisoner was the first witness who testified immediately following the court's overruling of appellant's motion.
The allegation of appellant's motion for new trial that he was the prisoner involved is not self-proving, and no evidence was offered in support of the motion. The record here does not afford any basis for review of the error here alleged. State v. Caffey, Mo.Sup., 404 S.W.2d 171, 176(4); State v. Sallee, Mo.Sup., 436 S.W.2d 246, 254(20, 21).
IV
Appellant's next assignment of error is based upon the court's overruling of a request to discharge the jury as follows:
'I'd like at this time for the record to show that the State's witnesses, who were brought from the institution, were dressed in civilian clothing, but that the State brought Defense witnesses in prison clothes, and ask that the jury be dismissed as this is prejudicial.'
In support of his contention, appellant has cited State v. Boyd, Mo.Sup., 256 S.W.2d 765, and State v. Rice, 347 Mo. 812, 149 S.W.2d 347. These are the same authorities relied upon by appellant in support of the allegation of error regarding his appearance in shackles. These cases did deal with that question. However, we do not find that such question is analogous to that here presented. The allegation of error refers to the appearance of 'witnesses subpoenaed by the Defense * * *.' The defendant himself was a witness, but no objection is made, based upon his attire. Interrogation of the defense witnesses revealed that they were in the custody of the Department of Corrections, a fact which would have been obvious in any event. The prisoner-witnesses who testified on the day that the objection was made were all confined elsewhere than at Moberly. Helms and Myers, the state prisoner-witnesses were still at Moberly at the time of trial. One of the defense witnesses who testified on the second day of the trial was confined in Moberly, but no mention was made of his attire when he testified. We find no evidence that there was a deliberate attempt on the part of prison officials to prejudice appellant by failing to dress his witnesses in civilian clothes. In view of all of the circumstances, we find no error in the court's overruling the motion to discharge the jury.
V
Appellant's next assignment of error relates to the introduction into evidence by the state of two jackets. One, identified as State's Exhibit 2--A, was a jacket which Kern picked up from the top of a trash can when the guard took him in...
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