State v. King

• Decision Date: 14 March 1960
• Docket Number: No. 47716,No. 2,47716,2
• Parties: STATE of Missouri, Respondent, v. Walter KING, Appellant
• Court: Missouri Supreme Court

Page 34

334 S.W.2d 34

STATE of Missouri, Respondent, v. Walter KING, Appellant.

No. 47716.

Supreme Court of Missouri, Division No. 2.

March 14, 1960.

Rehearing Denied April 11, 1960.

Raymond A. Bruntrager, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., for respondent.

EAGER, Judge.

Defendant was found guilty of robbery by means of a dangerous and deadly weapon with a prior felony conviction, and he was sentenced to life imprisonment. He has appealed in due course, but has filed no brief here. We, of course, consider those matters properly raised in his motion for new trial.

From the State's evidence the jury could reasonably have found the following facts: Shortly before 5:00 p. m. on January 13, 1959, a large Negro man appeared before the cashier's counter of Georgia White on the second floor of Scruggs-Vandervoort-Barney, Inc., in St. Louis. This man had waited behind two women for whom Mrs. White had cashed checks, but when he approached the counter he was alone. He reached over the counter and dropped a note, a brown paper bag and a one-dollar bill on Mrs. White's desk, which was on a lower level; Mrs. White asked him what he wanted, and getting no reply she turned and walked away about six or seven steps. The man said: 'Come back here. I only want change for a dollar bill.' She went back to the counter, and found that she was confronted by the barrel of a pistol pointed at her through a hole in another paper sack held in the man's hand at a distance of 'an arm's length.' The man said he wanted 'the big money and to hurry it up'; he kept the gun pointed at her and she placed something over $2,400 in bills in the paper bag, at the same time managing to press an alarm button; she handed the man the bag and he departed rather hurriedly down a stairway leading from the cashier's office to the outside Ninth Street entrance. The alarm bell rang at a location outside the store. Mrs. White immediately told her supervisor and others of the occurrence. Within a matter of minutes the building protection employee and the police were there. Mrs. White did not examine the man's note until after he left.

Defendant was arrested on the same evening at the home of one Alberta Ross. He was very definitely identified by Mrs. White, who testified that she had observed him from his chest or shoulders up for a matter of minutes, including the time when she was putting the money in the bag; she described his build, weight, color, hair, and parts of his clothing in detail. Mrs. White also picked out the defendant as the robber in the 'line-up' at the police station on the same evening. Miss Janet Vaughn, a cashier stationed the length of one desk to Mrs. White's right, had noticed the man while she was stamping mail; he was then standing in line, but when he did not come to her station, she went ahead with her work. She identified defendant in the police 'line-up' on the day after the robbery and identified him at the trial; she also described his appearance in detail. Alfred Hodges, in charge of protection at Scruggs, identified defendant as the man he had seen coming down the steps leading from the cashier's office to the Ninth Street entrance; the man was carrying a brown bag and passed on outside; this was just before Hodges was notified of the robbery. He also picked out the defendant in the line-up on the evening of the robbery. When arrested, defendant had on the same type of dark blue shirt or sweater described by Mrs. White. The State introduced the records of three prior Missouri convictions, two for second degree burglary and one for grand larceny. The sentences on these were served concurrently, and defendant's discharge was also shown. An attempt to prove a prior conviction and confinement in Michigan for armed robbery was unsuccessful, because of the insufficiency of the records produced; this ruling followed a discussion between court and counsel and the records were never formally offered in evidence.

Defendant adduced some evidence tending to establish an alibi. A Federal Narcotics Agent testified that he talked with defendant on the phone twice after 4:00 p. m. on the day in question, the last conversation terminating at 4:25 or 4:30. Defendant called the witness the first time, and on the second he reached defendant at a number which proved later to be that of a confectionery at Vandeventer and St. Ferdinand Streets, beneath the place where defendant lived. Along a different line, and over strenuous objections, defendant was permitted to show the circumstances of a robbery at the Laclede Gas Company office in St. Louis on February 4, 1959. This date was three weeks after the Scruggs robbery. Defendant's theory was that he was in jail at the time and could not have committed that robbery, but that its modus operandi was so similar as to be convincing that he did not commit either. The Laclede cashier testified that a large Negro man put a note and a paper bag on the cashier's counter and, by means of a gun concealed in another paper bag, perpetrated the robbery. She testified also that defendant was not the man who robbed her. The note used in the Laclede robbery was offered in the present trial; it was similar in wording to the one used at Scruggs. Both were printed on the back of check forms. A Mr. Vollertsen, an examiner of questioned documents for the Federal Government, was produced in an effort to show that both notes were written or printed by the same person. It will suffice to say that he pointed out certain similarities and certain differences, but stated that he was unable to reach a definite conclusion on that question; he also failed to reach of definite conclusion from a comparison of the notes with known writing or printing of the defendant.

Defendant does not question the sufficiency of the evidence for submission. We consider now the matters assigned as error in the motion for new trial. The Assistant Circuit Attorney stated in his opening statement that he expected to prove a prior conviction for armed robbery in Michigan. The documents by which he attempted to prove this were ruled inadmissible, primarily because no actual judgment of conviction or sentence was shown, but only a 'mittimus' or direction for confinement. The colloquy concerning these records took place out of the hearing of the jury; at its conclusion counsel for defendant stated that he objected 'to the instrument' and asked that 'it will be stricken from the record.' The court said: 'Sustained. The motion was sustained.' Counsel further stated that he had consulted with the defendant and that they had determined not to ask a mistrial. These records were never received in evidence and, in fact, they were never actually offered, although identified by the reporter. The point now made is that the court erred in not instructing the jury affirmatively to disregard the statements previously made about the conviction on voir dire and in the opening statement. The voir dire is not shown. The court ruled favorably to the defendant on his objections; it could not strike the exhibit from the record, for it was never in the record. No request was made for an instruction on the subject, and no motion was made to strike the statements. There was no occasion or necessity for the court to instruct the jury on this matter without specific request. See, generally, State v. Lee, 361 Mo. 163, 233 S.W.2d 666, 667, 668; State v. Parker, Mo., 324 S.W.2d 717, 724. The making of the statements did not constitute error for they were not objected to and the good faith of counsel was not and is not impugned. Thereafter, the court could not be put in error except by a specific request. And it would be difficult to find this matter prejudicial in view of the three other uncontradicted prior convictions and sentences; particularly is this true where the Michigan conviction was never referred to in the evidence or in the instructions, and the given instruction on this subject (No. 2) specified three prior felonies and set them out specifically.

Defendant assigns error in that the court failed to instruct that the jury 'should consider the fact that the defendant could not and did not commit the holdup of the Laclede Gas Company * * *.' Even assuming that defendant was in jail on February 4, 1959, which he did not attempt to show affirmatively, there is no merit whatever in the assignment. Actually, defendant claims error because the court failed to comment upon and emphasize certain evidence favorable to him. This the court may not do. State v. Wilson, Mo., 233 S.W.2d 686, 688; State v. Lyles, 351 Mo. 1174, 175 S.W.2d 587; State v. Talbert, 351 Mo. 791, 174 S.W.2d 144. Of course, the court must instruct on the 'law of the case' without request. Section 546.070(4) RSMo 1949, V.A.M.S.; State v. Wood, Mo., 266 S.W.2d 632, 637. Such an 'instruction' as defendant claims should have been given would not have been an instruction on the law, but a mere statement of the meaning of certain isolated evidence. That was a matter solely for the jury. No such instruction was requested in writing but, if requested, it would have been improper to give it. The jury had before it the evidence and the direct issue as to whether or not defendant committed the Scruggs robbery; it merely failed to find as defendant wanted it to find. We remark here that the court allowed to defendant a considerable latitude in permitting the introduction of this evidence at all. It involved a collateral matter and introduced an element of confusion. When properly considered, it did not even bear upon a true alibi (as the State seems to indicate), for it involved defendant's whereabouts at a date long subsequent to the offense for which he was on trial.

It is claimed that error was committed in receiving State's Exhibits 2 and 3; No. 2 was a photograph of the stairway leading both up and down from the cashier's office and of a...