State v. Mobley
| Decision Date | 08 July 1963 |
| Docket Number | No. 49624,No. 2,49624,2 |
| Citation | 369 S.W.2d 576 |
| Parties | STATE of Missouri, Respondent, v. Lawrence MOBLEY, Appellant |
| Court | Missouri Supreme Court |
Norman S. London, St. Louis, for defendant-appellant.
Thomas F. Eagleton, Atty. Gen., James J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
This defendant was convicted of second degree burglary and stealing in the Circuit Court of the City of St. Louis. He was also charged with sundry prior convictions; the court assessed his punishment at ten years' confinement for the burglary and five years for the stealing, the terms to run consecutively. Defendant was and is represented by counsel of his own choice and the case has been briefed. No point is made on the sufficiency of the evidence, and our recital of the evidence need not be made in any great detail.
The Ambrose Package Liquor Store at the corner of Kingshighway and Cates Avenue in St. Louis was protected by a burglar alarm system which would become activated upon any entry after the alarm was set. At midnight on November 27, 1961, the night manager set the alarm, locked the place and left; the inside was left well illuminated, as was the custom. At 3:52 a. m. on November 28, 1961, the burglar alarm registered in the central office of the operating company, the Potter Electric Alarm Company; the operator immediately called the police on a direct wire, and notified the owner of the business, Mr. Isadore Newman. Two police cars answered the call, a sergeant's car and the regular district patrol car. The sergeant's car arrived first. In that car were Sgt. James McGauley, Jr., and Patrolman Warren Johnson who happened to be talking to the sergeant when the call was heard. They were only three or four blocks from the scene and they estimated that they arrived within approximately two minutes. Officer Johnson testified, in substance: that as they approached the liquor store he saw a man moving around inside; as they pulled up to the front window Johnson got out with his revolver drawn, the man ran from the rear to the front, and Johnson called to him to halt, that they were police officers; the man, however, whirled around, stepped through the shattered glass of a side window, and started to run toward the rear; Johnson stepped over to a point where he could see him, yelled at him again to halt, and then fired three shots at him. One took effect, entering the right buttock and emerging from the lower abdomen; the man fell along the side of the building, toward the rear. Johnson testified that this man had never gotten out of his sight, and he definitely identified defendant as the intruder. The sergeant saw only a part of the proceedings, as he was apparently trying to cross behind the car to get closer; he stated that for a short time the man stopped at the front window with his hands raised, and that he later saw him running down a 'gangway' as Johnson fired. When found, defendant was lying more or less slumped against the rear bumper of a car. At about this stage of the proceeding, the district patrol car arrived and those officers proceeded to call a conveyance to take defendant to a hospital. He was moved there on a stretcher.
The officers searched defendant rather casually on the spot; they found his billfold and name, untied a mask (possibly a scarf) from around his neck, found a screwdriver in his side pocket and a pair of gloves near him on the ground. At the hospital $24 in currency and some keys were found on him; his clothes were sent to the police laboratory for examination. Johnson testified that he saw no blood on defendant at the scene; McGauley testified that he was bleeding considerably.
When the owner arrived, the premises were entered and examined. A large side window, approximately four feet wide and five or six feet high, had been shattered, leaving a hold described as 32 X 24 inches with some rather jagged places left near the bottom. Some of the glass had apparently been taken out and laid outside, the rest being shattered and lying both inside and out. Three cash registers and a change drawer had been forcibly broken open. Currency was found to be missing from a cigar box in which the proceeds of money order sales were kept; Mr. Newman, after checking, testified that the amount so missing was $44. This box had been placed on a lower shelf, but was found under the broken window, empty except for a few pennies. There was no evidence concerning money missing from cash registers. Fragments of the broken glass were delivered to the police laboratory for examination. There was expert testimony that glass fragments taken from defendant's clothing were identical in density with fragments found at the broken window; also, that the refractive index of each of the two groups was identical; these were supposedly recognized comparative tests.
The State offered evidence of prior convictions as follows, all on pleas of guilty: two of larceny of motor vehicles, two of second degree burglary, two of second degree burglary and larceny, one of tampering with a motor vehicle, and one of stealing over $50. In two instances pleas had been entered to three offenses on the same day and sentences were imposed to run concurrently these being for two and one-half years and four years, respectively. Defendant had thus served sentences in the Intermediate Reformatory, the State Penitentiary, and the St. Louis Workhouse. On cross-examination defendant admitted these convictions and, in fact, seems to have admitted an additional conviction for burglary and larceny which fell in with his second group of guilty pleas. On this evidence the court made a specific finding of prior felony convictions.
The defendant testified in substance: that he had been working on a toilet and sink for his mother-in-law at her beauty shop a short distance from this store, leaving there a little before 4:00 a. m.; that as he drove along he was suddenly seized with an impelling desire to urinate, turned off Kingshighway, parked on Cates near this store, and entered a 'gangway' where he relieved himself; that he had walked about halfway out when he was shot; that he fell, and tried to protect himself behind or under a car; that he had not been inside the store at any time, had not broken the window, had stolen nothing, and did not have any mask or scarf, tools, or gloves; that he explained to the police what he was doing there. The defendant did not put his character in issue.
Cora Taylor, defendant's mother-in-law, corroborated his testimony in part by testifying that he was at her place from about 11:30 p. m. to shortly before 4:00 a. m. putting an a sink which she wanted for service the next day in her shop; that he was late because he had been working somewhere else earlier.
Defendant briefs three points; the first and most serious concerns the closing argument of the Assistant Circuit Attorney. In order to explain this accurately, we think it better to quote the pertinent parts, omitting objections, requests, motions, colloquies and rulings. The argument was interspersed with objections and motions sufficient to preserve the points now raised. To facilitate the matter, we have arbitrarily inserted numerals in the quoted portions. In part, counsel for the State said: (1) 'In this case, I appear here as a representative of the decent, law-abiding people of the community. He just represents a client, a guilty client, by the way, and you represent our very system of justice itself. It is as simple as that. (2) * * * possibly the missing twenty-dollar bill might be very easily explained by the defendant, himself; after all, he is a man with a great deal of experience in this sort of thing. (3) * * * He said to you that it is impossible that this occurred, because it happened so quickly; the alarm went off at 3:51, the police were there within a very, very short time. Why, of course; we are dealing here with a professional burglar, a man who has had a great deal of experience in burglary, by his own admissions. (4) * * * And then, you consider the most important thing of all. You consider the criminal record of the witness who testified and asked you to believe him.
The only objection or motion sustained was in a ruling which struck the 'first part' of the second paragraph of (5) above, and instructed the jury to disregard it.
Defendant's counsel concedes here, as he must, that the State may legitimately...
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