State v. Reeder

• Decision Date: 11 October 1965
• Docket Number: No. 51311,No. 1,51311,1
• Citation: 394 S.W.2d 355
• Parties: STATE of Missouri, Respondent, v. Joseph Edward REEDER, Appellant
• Court: Missouri Supreme Court

Page 355

394 S.W.2d 355

STATE of Missouri, Respondent, v. Joseph Edward REEDER, Appellant.

No. 51311.

Supreme Court of Missouri, Division No. 1.

Oct. 11, 1965.

Norman H. Anderson, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, James D. Anderson, Sp. Asst. Atty. Gen., Kansas City, for respondent.

Emil J. Kohl, St. Louis, for appellant.

HOUSER, Commissioner.

Joseph Edward Reeder, convicted of first degree robbery by means of a dangerous and deadly weapon, Sec. 560.120, V.A.M.S., and of four previous felonies under Sec. 556.280, V.A.M.S., and sentenced to 15 years in the penitentiary, has appealed from the judgment of conviction.

The state's evidence indicated that after an evening of drinking and dancing at a tavern, the prosecuting witness Lehnhoff, defendant Reeder, codefendant Bobby McGaha, Reeder's girl friend and another woman and baby started to leave the tavern, about 1:30 or 2 a.m. It was raining, so Lehnhoff offered to drive them in his car, which was nearby the tavern door, to their car, which was on a parking lot at the end of the block. When they arrived at the parking lot McGaha got out of the car, pulled a gun on Lehnhoff, told him to get out of his car, and to stand still and not move or that McGaha would shoot. While McGaha held the gun on Lehnhoff, Reeder removed Lehnhoff's wallet, took $34 from the wallet, stuffed the empty wallet back in Lehnhoff's shirt pocket, and then reached around in back of Lehnhoff and got the silver change (about $1.50) out of Lehnhoff's right pants pocket. McGaha was holding the gun on Lehnhoff during the entire time. One of them ordered Lehnhoff to leave, so he got in his car and drove away. These events occurred at Broadway and Madison Street in the City of St. Louis. At a police station he reported the robbery. A detective later showed Lehnhoff a picture of Reeder, which he identified as one of the robbers. Thereafter Lehnhoff picked Reeder and McGaha out of a police lineup, positively identifying them as the participants in the robbery.

Appellant's first point is that the court erred in overruling his motion for new trial because the verdict was the result of bias and prejudice upon the part of the jury. Detective Monahan had testified that it was raining on May 30, 1964 between 10:30 and 11 o'clock p. m. when he saw McGaha at the tavern. Policeman Finnegan had testified that at about 11 o'clock p. m. when he saw McGaha at the tavern it was raining hard enough to require the use of windshield wipers. Lehnhoff had testified that it was raining when he left the tavern at about 1 o'clock a. m. on May 31, 1964. For the purpose of impeaching these three state's witnesses appellant introduced into evidence Exhibit No. 1, a certified copy of the Local Climatological Data of the U. S. Department of Commerce, Weather Bureau, which listed zero precipitation for the dates of May 30 and 31, 1964. Juror No. 7 inquired where these readings were taken, and the court suggested that they were taken at the Customs House (12th and Market, downtown St. Louis) and at Lambert Field (in St. Louis County). The assistant circuit attorney disputed this, claiming they were taken at Lambert Field. Counsel for defendant opined that the readings were taken at 12th and Market. Whereupon Juror No. 7 interjected: 'But it could be raining across----.' He was interrupted by counsel, who said he could show that the reading was made only at Lambert Field. Juror No. 2 asked to make an inquiry and the court permitted him to ask whether there could have been a local shower in that area that would not be recorded in the weather bureau record. One of the attorneys offered to answer but the court refused to permit the lawyers to testify. In rebuttal the state offered Exhibit A, to impeach defendant's Exhibit 1. The court admitted in evidence Exhibit A, which was a statement issued by the weather bureau of the U. S. Department of Commerce, St. Louis station, on December 2, 1964, as follows: 'I hereby certify that records of the U. S. Weather Bureau at our official station at Lambert Field, Hazelwood, Missouri, indicate that no precipitation fell at Lambert Field on May 30th, or May 31st, 1964. This applies solely to our official station at Lambert Field, and does not apply to other locations in the metropolitan area. Our radar for the period May 30th and 31st, 1964, indicates that showers were present around the metropolitan area during the evening of May 30th and the early morning hours of the 31st.'

Later the state brought a meteorologist to the stand. He testified that Exhibit 1 is a record of weather conditions at the two specific points only; that the bureau's radar reports showed areas of rainfall surrounding the St. Louis area on the night of the 30th and morning of the 31st of May, 1964, and that in his opinion it is very likely that some form of rain did occur within and around the St. Louis area that night, or in the early hours the next morning.

Appellant claims that Juror No. 7 demonstrated his partiality to the state's case by 'rejecting' the weather bureau's report that no rain had fallen on the night in question, the that his bias would influence the judgment of the other jurors before they had a chance to hear all of the evidence. It is argued that Juror No. 7 demonstrated that he would not accept evidence favorable to the defendant. Appellant cites State v. Wheeler, 108 Mo. 658, 18 S.W. 924, in which a juror, after being sworn but before any evidence was introduced, used brutal language to the defendant, thereby exhibiting prejudice. The court's action in overruling a challenge to the juror's right to sit in judgment was held ground for a new trial. The case is not comparable because the action of the juror clearly indicated bias and prejudice and the point was properly preserved.

In the case before us the point was first raised in the motion for new trial. Where misconduct of jurors is first presented at that stage an affirmative showing must be made that defendant and his counsel were ignorant of the fact until after the trial. State v. McGee, 336 Mo. 1082, 83 S.W.2d 98. In his motion for new trial defendant alleged that this was concealed from defendant and his counsel. In his brief appellant urges that the full import and force of the juror's words were not brought fully to the attention of appellant until the transcript was completed. These unverified statements do not prove themselves and do not constitute an affirmative showing of the concealment.

If the point had been timely and properly raised it would nevertheless not merit a new trial. The nature of the statement and question was not such as to exhibit bias or prejudice. It cannot fairly be said that either of the jurors demonstrated a rejection of or refusal to accept defendant's evidence on the issue. Instead of showing a closed mind on the subject the statement of Juror No. 7 and the query of Juror No. 2 demonstrate an understandable reaction to the evidence first introduced and a desire to be further and more fully informed. Nothing more is shown than a lively and active interest by the jurors in the issue of 'rain or no rain' and an attempt to clarify the question in their minds. The state introduced clarifying evidence which, judging from the fact that the jurors asked no further questions, apparently satisfied their curiosity. There is no error in this connection.

Next it is claimed that the state erred in giving main verdict-directing Instruction No. 1 for the reason that it 'required the jury to find facts in excess of those required by the statute and the State failed to prove facts sufficient to warrant a conviction in the light of the instructions given.' The argument is that Sec. 560.120, V.A.M.S. interdicts the felonious taking of the property of another by violence to his person or by putting him in fear of some immediate injury to his person, whereas No. 1 requires a finding of violence to his person and by putting him in fear. The instruction...