State v. Reece
| Decision Date | 08 June 1959 |
| Docket Number | No. 46986,No. 1,46986,1 |
| Citation | 324 S.W.2d 656 |
| Parties | STATE of Missouri, Respondent, v. George REECE, Jr., Appellant |
| Court | Missouri Supreme Court |
No attorney for appellant.
John M. Dalton, Atty. Gen., Donal D. Guffey, Asst. Atty. Gen., for respondent.
HOUSER, Commissioner.
George Reece, Jr., was charged and convicted of robbery in the first degree with a dangerous and deadly weapon, and the jury further found that he had been formerly convicted of a felony. Punishment was assessed at life imprisonment in the state penitentiary. Defendant appealed but filed no brief, so we examine the assignments of error in defendant's motion for a new trial. Supreme Court Rule 28.02, 42 V.A.M.S Error is assigned in overruling defendant's motion for judgment of acquittal at the close of the State's evidence and at the close of all the evidence. By subsequently offering evidence and testifying in his own behalf defendant waived any error as to the first motion. State v. Vincent, Mo.Sup., 321 S.W.2d 439. In testing the sufficiency of the evidence on the second motion for judgment of acquittal we consider as true the evidence favorable to the State and the favorable inferences reasonably to be drawn therefrom and disregard all evidence and inferences to the contrary. State v. Vincent, supra.
The victims of the robbery were Abe Nodiff, a grocer in the City of St. Louis, and Fred Liekweg, a grocery supplier. Nodiff testified that two men entered his store at 8:30 o'clock on the morning in question; that the smaller of the two, whom Nodiff positively identified as the defendant, pointed a gun at him, told him to turn around and took a loaded German Luger pistol, a money clip with seventy-five $1 bills in it, a wallet containing $90 and a coin purse containing about $10 in change from his pockets. Nodiff testified that the larger of the two, identified as James Willie Lee, took $20 or $25 from the cash register and struck, knocked down and robbed Liekweg who, during the course of the robbery, entered the store to make delivery for a doughnut company; that Lee took a billfold containing $40 from Liekweg and ordered Liekweg to the rear of the store, where Nodiff and defendant were standing. After learning that the space in the meat cooler was too small to accommodate Nodiff and Liekweg, the robbers ordered the victims to the basement. Defendant cursed Nodiff, threatened to kill him and to blow his heart out. Two minutes after the robbers made their getaway Nodiff and Liekweg came out of the basement and reported the robbery. A description of the robbers was broadcast. Lee, captured at 8:55 o'clock that morning, was found crouching under a mattress in a basement, holding a revolver in his right hand. Lee was wearing a trench coat which was missing a button; a matching button was found at the scene of the crime.
Between 9:15 and 9:30 o'clock that morning Nodiff went to a police station and saw Lee, whom he recognized. At the Bureau of Identification Nodiff was asked to look at some pictures to see if he could identify the other man. After looking at approximately forty pictures Nodiff picked out a picture of defendant as one of the two men who had perpetrated the robbery and positively identified defendant. The officers went to defendant's address where, after a thorough search, defendant was found in the basement hiding under a pile of rugs. At 3 o'clock that afternoon Nodiff went to the police station and personally and positively identified defendant as the same man he had seen in the morning with the pistol. At the trial Nodiff testified that at the time of the robbery defendant was wearing a dark hat and a raincoat commonly called a 'trench coat.' A trench coat belonging to defendant was found at defendant's house the day of the robbery. That coat, Exhibit 2, was produced in court. Nodiff testified that Exhibit 2 was 'very similar' to the coat worn by defendant, although he could not say that it was the exact coat. At the trial Nodiff described the pistol used in the robbery as 'a lighter type revolver, a long nose, possibly a .32.' He said the pistol was held less than three feet in front of him. The gun, Exhibit 1, was taken from the possession of Lee when the latter was arrested. Exhibit 1 was produced in court. Nodiff testified that Exhibit 1 'looks, sir, much like the one I was held up with,' and testified that during the holdup he saw a gun that 'looked very much like this one'; that with the light shining, the side of the gun 'looked very shiny.' The trench coat Lee was wearing when arrested, Exhibit 3, was identified by defendant as 'similar to the coat worn by Lee.' Nodiff testified that the two men were in his store a period of ten to twelve minutes. He took special notice of the smaller man, the defendant. Nodiff was looking directly at him during the robbery. He testified that defendant looked at him 'when he had the gun in my face'--'when he threatened to shoot me'--'when he ordered us into the meat cooler.' He noticed defendant's face 'as a whole.' The particular features which impressed him in identifying defendant were defendant's eyes and mustache. He paid special attention to his mustache and eyes. He remembered defendant's eyes because of 'the way they are set, the way he glares.' He said that he had 'been in business long enough to recognize facial characteristics and individual faces.' He testified that after identifying defendant at the police station he saw defendant at the preliminary hearing and again at the trial. Nodiff testified at the trial that he was 'positive' defendant was the man who robbed him.
The foregoing constituted substantial evidence of defendant's guilt and made a submissible case on the charge contained in the information, both as to the commission of the crime of robbery with a dangerous and deadly weapon and the identification and criminal agency of the defendant. State v. Smith, Mo.Sup., 298 S.W.2d 354; State v. Andrews, Mo.Sup., 309 S.W.2d 626.
Defendant contends that the evidence conclusively established the presence of the defendant elsewhere at the time of the commission of the alleged defense. Defendant testified that he was at his home throughout the entire morning of the robbery, performing household tasks such as painting floors, moving furniture and hanging curtains. In this he was corroborated by his parents, brother, girl friend and a tenant in the building. We cannot, however, say that the defense of alibi was 'conclusively established' by the evidence given in behalf of defendant. It was within the province of the jury to disbelieve defendant and the several witnesses by whom he sought to establish an alibi. The testimony upon which the jury based its verdict was of probative force, convincing in character and given by a reputable citizen. We find no fault with the action of the jury in this respect. State v. Worten, Mo.Sup., 263 S.W. 124. The evidence sustained the conviction as against the defense of alibi. State v. Smith, 358 Mo. 1, 212 S.W.2d 787.
Defendant's assignments 7, 8 and 9 (admitting 'incompetent, illegal, immaterial and prejudicial testimony,' reading to the jury five numbered instructions 'as to the law of the case,' and permitting counsel for the State 'to make improper, immaterial and prejudicial remarks to the jury in his closing argument') failed to set forth in detail and with particularity the specific grounds for complaint, as required by Supreme Court Rule 27.20(a). They are too general to preserve anything for appellate review. State v. Stehlin, Mo.Sup., 312 S.W.2d 838; State v. Tompkins, Mo.Sup., 312 S.W.2d 91, 92; State v. Whitaker, Mo.Sup., 312 S.W.2d 34.
Error is assigned in permitting State's counsel to interrogate defendant as to prior convictions because 'the ostensible purpose of same cross-examination * * * (was) to create prejudice, passion and bias against the defendant.' During the State's case in chief the State proved the prior convictions alleged in the information by identifying, introducing and causing to be read to the jury the records of the judgments of conviction of defendant and certified copies of records showing discharge from penal institutions upon lawful compliance with the sentences imposed. When the first of these was sought to be introduced defendant's attorney stated that defendant would admit the previous convictions as charged in the information. State's counsel insisted upon putting them in the record 'so the jury can hear it.' No objection was made by defendant. Thereafter, on cross-examination of the defendant, who took the stand in his own behalf, State's counsel, in an effort to show that the 1956 conviction was a conviction of defendant jointly with Lee, inquired of defendant whether he was convicted of burglary second degree in 1956 and whether he was convicted along with James Willie Lee. Defendant's counsel objected to cross-examination of defendant as to his prior convictions 'because they are admitted for the purpose of the record, and a further interrogation of them serves no purpose other than to prejudice the minds of the jury against the defendant.' The State's attorney insisted upon his right to do so 'in impeachment.' The...
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State v. Hawkins
...fear, and also that every one of the three was included in a joint possession and control of the money. See, generally: State v. Reece, Mo., 324 S.W.2d 656, 660--661. The evidence in this case was clear and wholly undisputed; the issue was referred back to 'Granville Cook, Wilma Otto, and o......
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State v. Hill
...a matter of law. It was further within the province of the jury to disbelieve defendant's alibi witness, Gary Cornell Wyms. State v. Reece, Mo., 324 S.W.2d 656, 659; State v. Rima, Mo., 395 S.W.2d 102, Defendant's last allegation of error is in the giving of Instruction Number One, the pert......
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State v. Weinzerl, KCD26038
... ... (State v. Minnis, 486 S.W.2d 280, 284(3--5) (Mo.1972)) or, in case of alibi, that the defendant was present at the scene of the crime (State v. Reece, 324 S.W.2d 656, 661(11--13) (Mo.1959)), absence of self-defense is proved by evidence that the killing was done with malice, an essential element of a charge of homicide (State v. Malone, 327 Mo. 1217, 39 S.W.2d 786, 790(5) (1931), Perkins on Criminal Law, 2d ed., pp. 48--51), and alibi is proved ... ...
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...on the prosecution to prove such presence beyond a reasonable doubt. State v. Hubbard, 351 Mo. 143, 171 S.W.2d at 706; State v. Reece, 324 S.W.2d 656, 661[11-13] (Mo.1959). A defendant is entitled to have the issue of alibi submitted to the jury where there is evidence to support the submis......