State v. Pope

• Decision Date: 11 February 1963
• Docket Number: No. 2,No. 49439,49439,2
• Citation: 364 S.W.2d 564
• Parties: STATE of Missouri, Respondent, v. Floyd Delorace POPE, Appellant
• Court: Missouri Supreme Court

Page 564

364 S.W.2d 564

STATE of Missouri, Respondent, v. Floyd Delorace POPE, Appellant.

No. 49439.

Supreme Court of Missouri, Division No. 2.

Feb. 11, 1963.

No appearance for appellant.

Thomas F. Eagleton, Atty. Gen., Lynn B. Nelson, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

EAGER, Presiding Judge.

Defendant was tried on an amended information for first degree robbery and found guilty by a jury. The court found, apart from the jury, Sec. 556.280, that he had been convicted, sentenced and imprisoned on four charges of robbery in the State of Illinois, the sentences having run concurrently. Thereupon, after considering and overruling a motion for new trial, the court sentenced defendant to a term of fifteen years in the penitentiary. Since no brief is filed here, we consider such assignments of the motion for new trial as are sufficient, and those parts of the record required by Criminal Rule 28.02, V.A.M.R.

One such assignment raises the sufficiency of the evidence to sustain a conviction, hence we state the facts. In view of the verdict, we state them favorably to the State. Edward Dugan, a truck driver on local runs in St. Louis, had gotten off work at about 9:30 p. m. on December 13, 1961; thereafter he visited a 'few bars' drinking beer, leaving the last one at some time around 12:30. As he drove along Washington Avenue on his way home (apparently in the 4400 block) he felt, as he stated, a need to 'relieve' himself, so he turned into a dead end alley about 75 feet in length; he drove along this for about 50 feet, and turned his car to the left into a vacant lot or yard, so that he might back out when his mission was concluded. His left door glass was down; just as he was starting to get out of his car, a man appeared on his left, put his hand on his shoulder and asked if he had identification; this man also asked what he was doing there. Dugan answered the latter inquiry very directly; following a few further remarks of no particular consequence, Dugan took out his wallet to show his identification. At this point the man (later identified as this defendant) reached for Dugan's wallet and he, Dugan, threw it on the floor, supposedly under the front seat. Thereupon the man opened the door and got partially into the car (or leaned in over Dugan) 'and was wrestling' with Dugan, obviously for the possession of the wallet; this man was then more or less on top of Dugan. At about that stage of the proceedings 'another colored follow' walked up and when Dugan saw him, he (Dugan) 'just quit fighting * * * just gave up and let him take the wallet and money.' The entire context indicates that the first man, the one who was 'wrestling,' was the one who took the wallet; in fact, Dugan testified directly that this defendant was the one who had his wallet, and that he saw it in his hand. The other man, after the first one had gotten the wallet, 'stood there and hit me about five times in the forehead' with his 'hand and knuckles.' Money in an amount between $120 and $130 was taken from the wallet which was then thrown back into the car. The man who got the wallet was larger than Dugan. The two men then conversed briefly and told Dugan to 'get the hell out of there' and not to come back. At some point in this sequence of events, Dugan had seen a woman standing about 30 feet away beside a building. Dugan testified that he got a good look at defendant's face as the latter stood outside the car after the robbery, that he was not masked and that there were lights in the area, possibly surrounding street lights; also that he noted that this man was wearing an earring in his left ear. Dugan, immediately thereafter, drove until he found a police car in the neighborhood and returned to the scene with the officers; he testified that he was not familiar with the neighborhood. They found no one upon their return. One of the officers testified that there were 'flood-lights' in the rear of at least one building at the scene, and he thought also on others.

Defendant was arrested, along with two women, in front of 4458 Washington, a hotel and cocktail lounge, about 2:00 a. m. on December 17, 1961; this was approximately three days after the robbery. He was not then arrested for this robbery, but the arresting officers knew of it. One officer testified that they booked and held the three 'for investigation suspected of drug addiction.' One of these officers had previously seen defendant at least twice; at the time of the arrest the women with defendant were trying to stop passing cars. When arrested, the defendant was wearing an earring 'with a white stone' in his left ear lobe. A little later Dugan viewed defendant in the 'line-up,' and identified him; he testified: that he recognized the earring at the station, but that he also identified defendant by his face, his mustache, and his voice,--the identity not depending 'entirely' upon the earring. Incidentally, the earring was identified at the trial and received as a State's exhibit.

The sole evidence offered on the merits by defendant was the testimony of Dugan at defendant's preliminary hearing. This was read from the reporter's notes. The differences shown were rather immaterial. Some reference was made there to a knife, apparently arising first in an answer of Dugan; he thus testified: 'I don't know if he had a knife * * *'; he then answered in the negative when asked directly whether defendant had a knife; he also answered in the negative when asked whether defendant got 'in your automobile.' Naturally, there are minor differences in details and phraseology when that testimony is compared with the testimony at the trial. All of this was for the jury and concerned merely the weight of the State's evidence.

The trial court did not err in denying defendant's motions for acquittal. The chief issue of substance was the identification of the defendant; Dugan did identify him directly and without equivocation, and that issue was resolved; the credibility of this witness was solely for the jury. The evidence supplied every necessary element of first degree robbery. Section 560.120, RSMo 1959, V.A.M.S. (To which revision all statutory references will apply.) It was ample to show both 'violence' and a 'putting * * * in fear,' whereas either was sufficient. State v. Van Horn, Mo., 288 S.W.2d 919, 921. As to the requirement of violence, it was said in State v. Spivey, Mo., 204 S.W. 259, 261: 'Snatching a valuable article from another is always denominated robbery where any force is exercised either to overcome the resistance of the person robbed or in detaching the article taken where it is fastened in some way to the clothing or person of the one robbed.' See also State v. Whitley, 327 Mo. 226, 36 S.W.2d 937.

Defendant has assigned error in the refusal of his offered instructions numbered 1, 2, 3 and 4; these assignments were made in separate paragraphs of the motion, but each stated in identical language that error was committed for the reason that the respective instruction 'is a fair and proper declaration of the law covered by said instruction.' Missouri has long followed the precepts of our Sec. 547.030 and of Criminal Rule 27.20 requiring that the grounds assigned for the granting of a new trial shall be stated 'in detail and with particularity.' Our cases have uniformly construed this to mean, as applied to the giving and refusal of criminal instructions, that the assignment must point out the reason why the action was erroneous. State v. Grubbs, 358 Mo. 323, 214 S.W.2d 435, 437, and cases cited; State v. Tebbe, Mo.App., 249 S.W.2d 172; State v. Thompson, Mo., 29 S.W.2d 67, 70; State v. Shuls, 329 Mo. 245, 44 S.W.2d 94. In several recent cases where assignments on the refusal of one or more instructions had certainly been no more vague or general than those now under consideration, and probably less so, our court held the assignments to be insufficient. State v. Baker, Mo., 293 S.W.2d 900, 906; State v. Harris, Mo., 351 S.W.2d 713, 716; State v. Turner, Mo., 320 S.W.2d 579, 586; State v. Linders, Mo., 224 S.W.2d 386, 390; State v. Miller, 357 Mo. 353, 208 S.W.2d 194, 201. In State v. Harris, supra, the court said, at loc. cit. 716: '* * * his assignment in the motion that the court erred in refusing instruction A (also relating to the testimony of an accomplice) 'because it fairly and fully declared the law in said cause' is quite indefinite and does not state a ground or cause for a new trial (Sup.Ct.Rule 27.20,...