State v. McKissic, 49067

• Decision Date: 11 June 1962
• Docket Number: No. 2,No. 49067,49067,2
• Parties: STATE of Missouri, Respondent, v. James McKISSIC, Appellant
• Court: Missouri Supreme Court

Page 1

358 S.W.2d 1

STATE of Missouri, Respondent, v. James McKISSIC, Appellant.

No. 49067.

Supreme Court of Missouri, Division No. 2.

June 11, 1962.

Richard F. Koch, St. Louis, for appellant.

Thomas F. Eagleton, Atty. Gen., James P. Jouras, Sp. Asst. Gen., Jefferson City, for respondent.

BARRETT, Commissioner.

James McKissic has been found guilty of robbery in the first degree. There was a charge and finding by the court of a prior felony conviction and, therefore, the appellant was sentenced to seven years' imprisonment.

These were the circumstances of the robbery: About 7:30 a. m., on December 24, 1960, Fred Grenzer opened his employer's liquor store, the Martin Liquor Store at 5307 Easton Avenue. In about fifteen minutes McKissic entered the store, as he often did, and purchased a bottle of wine. Almost immediately Robert Williams entered the store 'with automatic revolver and told me to move on,' threatening to put Grenzer in the icebox. Williams pointed the gun at Grenzer from beneath McKissic's arm and while in this position Trosper Reese entered the store and took $32 from the cash register. At the direction of Williams, Grenzer, together with McKissic, entered the washroom and Williams, Reese and another man outside the door, Moore, left. According to Grenzer the unusual thing about McKissic was that he was quite talkative when he entered the store, during the holdup the robbers did not say anything to McKissic, and when he wanted out of the washroom McKissic said, "Don't go out, you are liable to get hurt." The washroom was very small and McKissic stood in front of Grenzer and would not get out of the door, 'I even pushed him out of the way and went out,' and almost immediately the police arrived. McKissic remained and as Grenzer described Williams and Reese, 'was disputing some part of the description I gave.' The next time Grenzer saw McKissic was on January 15, 1961, at the Page Boulevard police station. Grenzer 'simply told him I wanted to know the truth, and that's what he told me.' McKissic started off by saying that 'he didn't want to put the finger on anybody,' and then he said that the night before, at Williams' house, 'they had framed up this robbery.' McKissic was to enter the store and buy the wine and Williams was to follow and stage the holdup. The following morning McKissic, Williams, Moore and Reese rode in Williams' automobile to a vacant lot across the street from the liquor store and the robbery was committed. After leaving the liquor store McKissic went to the Williams' residence at 5569 Cabanne and Salley Williams gave him $8 'as his share.'

In these circumstances, in a substitute information (V.A.M.S., Sec. 545.300), McKissic was charged with robbery in the first degree. V.A.M.S., Sec. 560.120. After alleging the prior conviction, the information alleges that on December 24, 1960, McKissic 'with force and arms, by means of a dangerous and deadly weapon, to-wit; a pistol, in and upon one Fred J. Grenzer feloniously did make an assault; and the said Fred J. Grenzer in fear of an immediate injury to his person, then and there feloniously did put; and by force and violence to his person thirty-two dollars * * * feloniously and violently did rob, steal, take and carry away * * *.' This information directly charges McKissic with robbery in the first degree. State v. Moore, Mo., 347 S.W.2d 195. The state has misconceived the point made for appellant by his court-appointed counsel, after the prosecutor's opening statement counsel objected that the information charged 'this defendant as a principal,' that he was not charged 'in conjunction with other persons,' and that the proof, as stated by the prosecutor, would not support the information. Aside from the fact that 'No assignment of error respecting the sufficiency of the information' is necessary (Sup.Ct. Rule 28.02, V.A.M.R.), in his motion for a new trial the appellant makes the point that this information does not fairly apprise him of the nature of the accusation in that it charges that he acted personally and did not allege conspiracy or that he acted with others. It was said that failure to charge him as an accessory rather than as a principal and trying him on that theory did not properly apprise him of the nature of the charge and that in that connection the court erred in not limiting the testimony of Grenzer and the police officers 'to the words and actions of the defendant alone' and permitted them to relate the actions and statements of others involved in the offense.

While a statute plainly provides that if two or more persons commit an offense they shall be jointly charged, failure to join them does not invalidate the indictment or information: 'When two or more persons are charged with having committed an offense jointly, all concerned shall be included in one indictment or information, but the failure to so join them shall not invalidate the pleadings.' V.A.M.S., Sec. 545.140. The rule reads, 'All persons charged with the joint commission of an offense may be included in one indictment or information.' Sup.Ct. Rule 24.05. But in connection with the rule and the statute there is another statute that has been in force since 1825, 'Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony before the fact, shall, upon conviction, be adjudged guilty of the offense in the same degree, and may be charged, tried, convicted and punished in the same manner, as the principal in the first degree.' V.A.M.S., Sec. 556.170; State v. Jones, 339 Mo. 893, 98 S.W.2d 586. Here, according to McKissic's statement as testified to by Grenzer, the jury could reasonably find a conspiracy (State v. Mangiaracina, Mo., 350 S.W.2d 796), the appellant was present and in the circumstances he was an accessory before the fact, if not a principal, and he could have been jointly charged with the others (State v. Roderman, 297 Mo. 143, 248 S.W. 964) or as an aider or abettor (State v. Herman, Mo., 280 S.W.2d 44), and it was permissible to charge him alone with having committed the offense and the fact did not unfairly infringe his right 'to demand the nature and cause of the accusation,' Const.Mo.1945, Art. 1, Sec. 18(a), V.A.M.S. State v. Moore, Mo., 347 S.W.2d 195; 42 C.J.S. Indictments and Informations Secs. 157-158, pp. 1104-1106.

The conspiracy continued to the division of the proceeds of the robbery (State v. Costello, Mo., 252 S.W. 727, 729), and the briefly noted circumstances support the jury's finding of the appellant's guilt as charged. State v. Tripp, Mo., 303 S.W.2d 627. Furthermore, in these circumstances it was not necessary to show that McKissic personally committed all the acts constituting the elements of the offense, the acts of his coconspirators were admissible against him, and in connection with the principal charge the court did not err in giving the jury the conventional, abstract instruction on acting in concert with others with a common intent. State v. Johnson, Mo., 347 S.W.2d 220; State v. Mangiaracina, supra.

The appellant did not give a written statement or confession and it does not appear until after the opening statement by the prosecutor whether the defendant and his counsel were aware of the fact that after his arrest 'this defendant gave details of his implication in the robbery.' If appellant's counsel had prior knowledge, or even after he became aware of the fact of either a written confession or an oral admission, the usual procedure was not followed, there was no request for the court to determine preliminarily whether any confession the appellant may have made was voluntary or involuntary. State v. Di Stefano, Mo., 152 S.W.2d 20; State v. Green, Mo., 236 S.W.2d 298, 300. When Grenzer started to repeat what McKissic had said to him at the police station there was a request 'to have hearing as to that prior to the time the testimony goes in.' But counsel's statement was that McKissic was not a 'very clear thinker,' that he was usually under the influence of alcohol and wine, that he was picked up at night and in custody and counsel thought 'the circumstances of the case at the time he made these confessions should be revealed.' When it was stated that there were no written confessions, the quoted objection was overruled. Grenzer then gave the indicated testimony and there were no further objections or requests directed to the involuntariness of any admission or confession McKissic may have made. In cross-examining Grenzer it was developed that there were no 'promptings from me' as to what he should say,--'I wanted to know the truth, and that's what he told me.' He said that McKissic was not 'hazy' or drunk, that Officer Moriarity was present but did not question him at that time and made no suggestions.

When Officers Moriarity and O'Brien testified there were no objections or requests with respect to their direct examinations. When asked what he (McKissic) said, Moriarity testified: 'At first he denied being implicated in the robbery, and then after questioning, telling him we had information, that he was implicated in it, he admitted it, and we took him to the City Jail, where we confronted him with Andrew Moore (the lookout), Robert Williams (with the gun) and Trosper Reese (who took the $32). He identified all three subjects as being his accomplices in the robbery of Martin's Liquor Store. And at that time Andrew Moore identified him as being his accomplice in the robbery of Martin's Liquor Store.' These officers were cross-examined as to McKissic's arrest; he was arrested on the night of January 14 by officers other than Moriarity and O'Brien, but he was not examined by the officers until the next morning at 10:45. There were no threats, they talked to him about 20 minutes, told him what they had and took him to the city jail 'for purposes of identification.' Grenzer's conversation with McKissic was...