State v. Preston

• Decision Date: 05 February 1945
• Docket Number: No. 39191.,39191.
• Parties: STATE v. PRESTON.
• Court: Missouri Supreme Court

184 S.W.2d 1015

STATE v. PRESTON.

No. 39191.

Supreme Court of Missouri, Division No. 2.

February 5, 1945.

Appeal from Circuit Court, Jackson County, Criminal Division A; Paul A. Buzard, Judge.

Claude Chester Preston was convicted of robbery in the first degree by means of a dangerous and deadly weapon, and he appeals.

Affirmed.

Roy McKittrick, Atty. Gen., and Frank W. Hayes, Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

Claude Chester Preston was convicted of the crime of robbery in the first degree by means of a dangerous and deadly weapon and sentenced to twenty-five years' imprisonment in the penitentiary. Mo.R. S.A. §§ 4450, 4453.

The circumstances, according to the state's evidence, were that in the early morning of March 22, 1943, Mr. McMahan was on duty at the Montague Hotel as the night clerk when a man entered the hotel and inquired whether a Mr. Simpson was staying there. Mr. McMahan looked in the register and as he answered "No" and laid the register down the man said: "How does this look to you?" pointing a gun. The strange man asked McMahan for his billfold and when informed that he did not have one searched him "holding the gun on me all the time." He took $1.60 from McMahan personally and $7.93 from the cash drawer. He jerked the receiver off the telephone switchboard, hit McMahan over the head with the barrel of his gun, and departed.

In his motion for a new trial Preston claims that the testimony identifying him as the robber is so "inconclusive, unsatisfactory and wholly conjectural" that it does not comprise substantial evidence, therefore the jury should not have been permitted to find him guilty. He says that McMahan was unable to describe an identifying mark, that he described and identified him merely "because of his impression" that he was the man who had robbed him. McMahan was impressed by his "expression" only, which he could not describe, and his physical description of the robber was such that it would fit hundreds of men of similar age, height and weight. It is said that McMahan erroneously described the robber's jacket to the police as a "brown leather jacket" which he subsequently changed to a "brown coat or jacket of some kind." It is insisted that he erroneously identified the defendant as wearing a "brown hat" which he never possessed, and that his description of the robber's clothes, in general, was so contradictory as to be unworthy of belief.

As soon as he was able McMahan called the police. When the uniformed officers arrived he described the robber as being twenty-five to thirty years old, possibly twenty-eight, five feet seven inches tall and weighing about one hundred fifty pounds. He told them the man had on a brown jacket with pockets in it; the police wrote it down as a "brown leather jacket." A day or two after the robbery the police had him look at three "suspects" but he did not identify either of them. At that time he gave a detective a further description of the robber and the detective began showing him some "rogues gallery" pictures and when he came to the third or fourth one McMahan said: "there wasn't any use looking any further, that that was the man that held me up." The picture was of Preston. A few days later McMahan picked Preston out of a police "show-up" as the man who had robbed him. At the trial he was positive in his identification of Preston. He said he was particularly impressed with his talk and his voice.

Obviously McMahan's testimony identifying Preston as the man who had robbed him was a statement of fact as contrasted with "opinion evidence." 23 C.J.S., Criminal Law, § 864, p. 73; State v. Blackmore & Godsey, 327 Mo. 708, 38 S.W.2d 32; State v. Powers, 130 Mo. 475, 32 S.W. 984. He had an excellent opportunity to carefully observe the man. State v. Davis, Mo.Sup., 161 S.W.2d 973. He said he was not frightened and the circumstances were such that his senses were alert to the man's size, general appearance and voice. State v. Scobee, 331 Mo. 217, 53 S.W.2d 245. It does not appear that Preston had any visible, unusual identifying marks or scars. As a matter of fact he was thirty years old, exactly five feet seven inches tall and weighed one hundred forty-five pounds — which was very close to McMahan's description to the police. The identification of Preston's voice alone was direct evidence of substantial, probative value. State v. Riddle, 324 Mo. 96, 23 S.W.2d 179. Considered as a whole, there was a positive identification of Preston based on personal observation. The evidence, therefore, was most substantial. State v. Brooks, Mo.Sup., 159 S.W.2d 646. The objections and criticisms in Preston's motion for a new trial go to the weight and credibility of the evidence rather than to its probative force and substantiality. State v. Kaner, 338 Mo. 972, 93 S.W.2d 671.

Whether Preston and one of his chief witnesses worked for a certain motor company the two or three days following the robbery, when they quit working, Preston's prior criminal record and why he was present at the draft board the day he was arrested were all matters counsel attempted to develop as favorably as possible and to the advantage of their respective causes. It is urged that in his cross-examination and argument with...