State v. Neal
| Decision Date | 12 June 1967 |
| Docket Number | No. 2,No. 51938,51938,2 |
| Citation | 416 S.W.2d 120 |
| Parties | STATE of Missouri, Respondent, v. Calvin NEAL, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Frank P. Motherway, Special Ass't Atty. Gen., St. Louis, for respondent.
Edwin D. Akers, Jr., St. Louis, for appellant.
Appellant, Calvin Neal, was convicted of first-degree robbery by means of a dangerous and deadly weapon under § 560.120 RSMo 1959, V.A.M.S., by a jury in the Circuit Court of the City of St. Louis, Missouri, and his punishment was assessed at imprisonment in the State Department of Corrections for a term of twenty years. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.
Appellant does not question the sufficiency of the evidence. The record justifies the following recitation of facts: On May 26, 1965, at between 1:00 and 1:30 in the afternoon, two men entered the office of the Arrow Loan & Finance Company in the City of St. Louis. Each man was armed with a pistol and each wore a handkerchief across his face. They asked an employee where the money was located. She told them and the money was taken. The two men then backed out of the building, got into a black Cadillac automobile, and drove away. One of the employees of the loan company testified that appellant was driving the Cadillac as it left.
As the Cadillac was leaving the premises an employee of the loan company watched it drive west on Berthold Avenue and then got into another car and attempted to follow it. Within a few minutes after the robbery this employee found the car abandoned behind a warehouse building a few blocks west of the loan company on Berthold Avenue and informed a policeman who was in the area.
Another witness saw the Cadillac park across the street from his place of business and saw two or three persons get out of the car and get into another car which was parked nearby. The witness described the second car as being either a Dodge or a DeSoto and stated that this car drove off in an esterly direction along Berthold Avenue. This witness took the license number of the car and informed a police officer who came to the scene a few minutes later.
Sometime between 1:00 and 2:00 o'clock P.M. appellant was observed at the intersection of Clayton and Oakland near Hampton Avenue. He was walking west on Oakland near the intersection of Clayton with a woman and one other man. He hailed down a passing car driven by a man named Campbell and offered Campbell some money if he would take them back with a can of gasoline. At a filling station at the corner of Clayton and Oakland appellant bought a can of gasoline and he and his companions got into the car with Campbell and proceeded east on Oakland. About ten minutes later appellant returned to the station in the car driven by Campbell. His companions returned to the station in a DeSoto and asked the station attendant to apply the deposit which had been paid on the gas can toward the purchase of more gasoline for the DeSoto. Almost immediately thereafter a police car pulled into the station and appellant was arrested. The DeSoto automobile hurriedly left the station and drove east on Oakland. Shortly thereafter the Desoto was stopped by police officers and its three occupants (Dean Johnson, Gloria McIntyre and Guren Kenner) were arrested. They were conveyed to a police station in a cruiser and two pistols were found in the cruiser after it arrived at the station.
Three employees of the loan company identified appellant as one of the two men who came into the loan company office and committed the robbery.
Appellant first aserts error in the giving of Instruction No. 1 because said instruction submitted dual theories of conviction in the conjunctive. The instruction reads in part as follows:
'In this connection, you are instructed that if, upon consideration of all the evidence in this case, and in the light of the Court's instructions, you find and believe from the evidence, beyond a reasonable doubt, that at the City of St. Louis, Missouri, on the 26th day of May, 1965, the defendant, Calvin Neal, either acting alone or jointly with another, and by means of a dangerous and deadly weapon in the form of a pistol, and by force and violence to the person of Louis H. Budke, and by putting him in fear of an immediate injury to his person and against his will did rob, steal, take and carry away from the presence and possession of Louis H. Budke $589.14, * * *.'
Appellant concedes there was evidence to support the theory that Louis H. Budke was put 'in fear of an immediate injury to his person' but asserts there is no evidence to support a finding of 'force and violence to the person of Louis H. Budke.'
Appellant acknowledges the statement made in State v. Reeder, Mo.Sup., 394 S.W.2d 355, at 358, where this Court said:
However, appellant cites Hardy v. St. Louis-San Francisco Railway Company, Mo.Sup., 406 S.W.2d 653, 659, and directs our attention to the present rule on civil instructions, as stated in MAI No. 1.02, at page 7, as follows:
Appellant urges that a similar rule should be adopted in criminal cases. We need not and do not rule this question in this case. The evidence shows that a pistol was 'held on' Louis H. Budke and 'pointed at' Louis H. Budke. It is conceded that these acts put Louis H. Budke 'in fear of an immediate injury to his person.' We hold they are also sufficient to prove 'force and violence to the person of Louis H. Budke.' State v. Rose, Mo.Sup., 325 S.W.2d 485; State v. Eddy, Mo.Sup., 199 S.W. 186; State v. Dickens, Mo.Sup., 285 S.W. 445; State v. Wallace, Mo.Sup., 278 S.W. 663. The pointing of a dangerous and deadly pistol at a robbery victim constitutes 'violence to his person.' Appellant's contention is without merit.
Appellant next assets that the trial court erred in admitting, over objection, evidence 'concerning the flight and arrest of three alleged accomplices of appellant.' This evidence relates to the flight from the gas station in the DeSoto automobile by Dean Johnson, Gloria McIntyre and Guren Kenner, and their subsequent arrest. We recognize that this Court indicated in State v. Sykes, 191 Mo. 62, 79, 89 S.W. 851, 855, that evidence of the flight of a conspirator, on a trial of a co-conspirator, is irrelevant and immaterial, and stated in State v. Chernick, Mo.Sup., 280 S.W.2d 56, 59--60: 'Generally it is said that after the common enterprise is ended, whether by accomplishment or abandonment, no one of the conspirators or joint actors is permitted by any subsequent act or declaration of his own to affect the others.' However, as a result of the arrest of Johnson, McIntyre and Kenner, two weapons were discovered. '(T)he fact may always be shown that any one of co-conspirators was in possession of * * * the weapon or instrument with which the crime was committed.' State v. Tripp, Mo.Sup., 303 S.W.2d 627, 632. See also State v Costello, Mo.Sup., 252 S.W. 252 S.W. 727, 729. Appellant's contention is without merit.
Appellant next contends the trial court erred in refusing to declare a mistrial when a witness for the State displayed a red wig to the jury. The record in this regard reads as follows:
'A Yes,...
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... ... By its order, the court, in the context of this case, 'eliminated any possible prejudice ... in the minds of the jury.' State v. Neal, Mo., 416 S.W.2d 120, 124(7, 8); State v. Russell, Mo., 395 S.W.2d 151, 155(4); State v. Nolan, Mo., 423 S.W.2d 815, 818--819(11--14) ... Appellant's Points III, VIII, X, and XI go to the sufficiency of the evidence. Under Point III, he charges that the burglary tools should have ... ...
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...this case we cannot hold the trial court abused its discretion in ruling the evidence relating to Bond's body admissible. State v. Neal, 416 S.W.2d 120, 124 (Mo.1967); see also, State v. Flowers, 592 S.W.2d 167, 170 (Mo. banc 1979). Cf. Killough v. United States, 336 F.2d 929, 933-4 (D.C.Ci......
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