State v. Reese

• Decision Date: 13 December 1954
• Docket Number: No. 44100,44100
• Citation: 364 Mo. 1221,274 S.W.2d 304
• Parties: STATE of Missouri, Respondent, v. Samuel Norbert REESE, Appellant.
• Court: Missouri Supreme Court

Page 304

274 S.W.2d 304

364 Mo. 1221

STATE of Missouri, Respondent, v. Samuel Norbert REESE, Appellant.

No. 44100.

Supreme Court of Missouri, En Banc.

Dec. 13, 1954.

Rehearing Denied Jan. 10, 1955.

Cecil Block and Merle L. Silverstein, St. Louis, for appellant.

John M. Dalton, Atty. Gen., John S. Phillips, Asst. Atty. Gen., for respondent.

LEEDY, Judge.

Samuel Norbert Reese was convicted of murder in the first degree in having shot and killed John E. Krieger at the City of St. Louis on November 15, 1951, and he appeals from the judgment of the circuit court of that city which sentenced him to the extreme penalty in accordance with the verdict.

This appeal was argued on behalf of appellant by the same court-appointed counsel who defended in the trial court. He has been joined in the preparation of the brief by another whose name appears thereon. The trial was long and involved, and during the nine court days it consumed a record of more than 1600 pages was amassed, 30 of which were taken up in reproducing the 58 separate causes or grounds specified in the motion for a new trial. The brief assigns but seven of these claimed errors, namely: Rejection of certain testimony offered by defendant's witnesses Murch and Rasmussen; in the giving of instructions 3, 5 and 6; in failing to declare a mistrial because of two incidents, one involving the setting up of a movie projector and screen, and the other involving the prosecutor's argument; and, lastly, improperly permitting the introduction of prejudicial evidence showing the commission of a subsequent robbery by defendant on the night in question. Notwithstanding this contraction, the brief declares that 'appellant does not wish to waive any of the points not herein briefed.' This is an untenable view of the prevailing and long-standing practice in that regard. Under decisions antedating the adoption of 42 V.A.M.S. Supreme Court Rule 28.02, which became effective January 1, 1953, State v. Mason, 339 Mo. 874, 98 S.W.2d 574; State v. Davit, 343 Mo. 1151, 125 S.W.2d 47; State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949; State v. Perry, Mo., 233 S.W.2d 717, and subsequently by force of the rule itself, such practice has remained the same. Rule 28.02 expressly provides that 'If the appellant files a brief in the appellate court, assignments of error in the motion for a new trial not presented thereby shall be deemed waived or abandoned.' While the disposition we find it necessary to make of the case renders the matter of no consequence on this submission, we do call attention ot the rule by way of cautioning others who may likewise have misapprehended its effect.

Krieger, the deceased, was shot and killed while on duty as clerk at the Windsor Hotel, 4209 Lindell Boulevard, in the City of St. Louis. The homicide occurred during the course of a holdup of the hotel. He was shot through the head. In the view we take of the case, and for the purposes of this opinion, an extended statement of the facts is unnecessary. For present purposes, the following, take from respondent's statement, will suffice: About 7 P.M., on Nov. 15, 1951, defendant and Dillard Wren entered the lobby of the Windsor Hotel where they 'found Krieger alone behind the desk and Wren told him it was a stickup. The phone rang and Krieger was ordered to answer it. At about that time, Bennett Crump, an elevator operator, came into the lobby from the basement delivering a cup of coffee to Krieger. When he stepped out of the elevator he found two men in the lobby with masks on; one was on the outside of the counter and another behind the desk holding a gun on the clerk. When the man on the outside of the counter saw Crump, he ordered him over to where he was and the man behind the counter said it was a stickup. Crump attempted to hold up his hand and when he did, Wren, who was behind the counter, 'kind of wheeled' and pointed his gun at Crump. Whereupon, Krieger attempted to strike Wren with some instrument and both Wren and the defendant turned and pointed their guns toward the clerk. Crump then heard an explosion but does not know how many shots were fired. Crump then ran down the hall and heard three or four shots and then felt a shot in his back under the shoulder blade.

'In his confession, the defendant said that when Krieger tried to strike Wren he gave an alarm but does not know whether he fired at that time at the clerk but does know that he fired three or four times at Crump who was running down the hall. He then stated that he fired his first shot at the clerk and then after firing at Crump three or four times, he fired again at Krieger who was then lying down with a bloody spot on his head. After this had happened, the two men ran out of the place, got in their car and drove down to South Broadway.'

The defense was directed to an effort to show defendant was not right mentally, and that a promise of a lesser degree of punishment was made to him to secure his confession. Defendant did not testify.

Krieger died as a result of his injury, but Crump, the colored bell boy, recovered, and testified to the bulk of the matters and things set forth in our statement of the facts. However, there was some faltering on his part in 'being able to swear' to the identification of defendant. Apparently because of this, and to identify the gun with which the murder was accomplished, the state was permitted to make the showing on which defendant's last point is based; that is, over his vehement objection, it was shown that about 9 or 9:30 on the same evening, about two hours after the occurrence at the Windsor Hotel, there was an attempted holdup of the Russell Liquor Store located at McLaren and Goodfellow, in the City of St. Louis, by two men who proved to be defendant and Wren. Witness Herzfeld (apparently a customer) stated that defendant stood right next to him for about five minutes with a German Luger pistol pressed against his (witness') face; that several shots were fired by both the robbers and the police; that when defendant was standing beside him, 'he [defendant] tried to load the Luger up again and he couldn't hardly make it, he was kind of nervous, and then by that time the other fellow [Wren] from the next room he hollered out, 'I surrender,' so he [defendant] hollered he surrendered, too, and he throwed the gun against the front of the store.' The Luger was retrieved by officers, and defendant was asked if he had the Luger all evening, and he answered, 'I had the Luger all evening.' The latter statement appears not only in defendant's confession, but it was proved by an array of police officers in whose presence it was made.

The state seeks to sustain the propriety of showing defendant's commission of this separate, independent and subsequent crime solely on the theory that such evidence was admissible to prove the identity of the defendant as the perpetrator of the murder for which he was then on trial. It is argued that inasmuch as bullets found at the Windsor Hotel were identified as having come from the Luger which was in his possession at the liquor store holdup, and that a bullet from this type of gun killed Krieger, therefore defendant's possession of the Luger at the subsequent holdup linked him with the murder of Krieger.

'The well established general rule is that proof of the commission of separate and distinct crimes is not admissible, unless such proof has some legitimate tendency to directly establish the defendant's guilt of the charge for which he is on trial. * * * Evidence of other crimes, when not properly related to the cause on trial, violates defendant's right to be tried for the offense for which he is indicted.' State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922-923. Exceptions to this general rule of exclusion are as well established as the rule itself. On this point this court has twice cited approvingly, State v. Buxton, 324 Mo. 78, 22 S.W.2d 635, 636, and State v. Spinks, 344 Mo. 105, 125 S.W.2d 60, 64, the following from People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 294, 62 L.R.A. 193: 'Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.' The test of whether evidence of other distinct crimes falls within any of these exceptions has been aptly stated as follows: 'The acid test is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime. But the dangerous tendency and misleading probative force of this class of evidence requires that its admission should be subjected by the courts to rigid scrutiny. Whether the requisite degree of relevancy exists is a judicial question to be resolved in the light of the consideration that the inevitable tendency...