State v. Romprey

• Decision Date: 14 November 1960
• Docket Number: No. 45992,45992
• Parties: STATE of Missouri, Respondent, v. Vernon Douglas ROMPREY, Appellant.
• Court: Missouri Supreme Court

Page 746

339 S.W.2d 746

STATE of Missouri, Respondent, v. Vernon Douglas ROMPREY, Appellant.

No. 45992.

Supreme Court of Missouri, En Banc.

Nov. 14, 1960.

J. K. Owens, Kansas City, for appellant.

John M. Dalton, Atty. Gen., W. H. Bates, Sp. Asst. Atty. Gen., for respondent.

HOLMAN, Commissioner.

Defendant, Vernon Douglas Romprey, was found guilty of robbery in the first degree. The jury further found that he had been convicted of prior felonies and hence the maximum penalty of life imprisonment was imposed. See Sections 560.120, 560.135, and 556.280(1) (all statutory references are to RSMo 1949, V.A.M.S.). He has appealed from the ensuing judgment.

The State's evidence justifies the following statement of facts: At 7:40 a. m. on Sunday, January 22, 1956, three men came to the front door of the home of Walter C. Diessl in Independence, Missouri. In response to the bill Mr. Diessl opened the door and the men forced their way into his home. All of the men were armed with pistols and two of them wore masks. They were later identified as defendant, Jesse Whitaker, and one Schwinegruber. Whitaker and Schwinegruber forced Mr. Diessl to obtain his car from the basement garage and to drive them to his jewelry store in the business section of Independence where they required him to admit them to the store and open his safe from which they took diamonds of the approximate value of $12,500. During the robbery defendant stayed at the Diessl home and guarded Mrs. Diessl and her sick mother. When Whitaker and Schwinegruber were ready to leave the jewelry store they telephoned defendant and instructed him to leave the Diessl home.

A few days later defendant, Whitaker, Schwinegruber, and one Enloe were arrested in St. Louis. Their arrest occurred when they took a car to a garage where it was observed by an off-duty policeman, Lieutenant Ziegenbein, who noticed that the car had what appeared to be a bullet hole in it. When arrested Whitaker and Schwinegruber were both carrying guns, and other weapons were found in clothing which apparently belonged to some of the men named. At that time defendant admitted that he had been in Kansas City and had driven to St. Louis on Monday, January 23.

Mr. and Mrs. Diessl went to St. Louis and identified Whitaker, Schwinegruber, and the defendant in a police line-up. At the trial they both positively identified the defendant as being the man who came to their home with Whitaker and Schwinegruber and stayed at the home while the robbery at the jewelry store was in progress. No evidence was offered by defendant.

For a more detailed statement of facts, see the companion case of State v. Whitaker, Mo.Sup., 312 S.W.2d 34.

The defendant has filed no brief and we will therefore review the assignments properly made in the motion for new trial. State v. Statler, Mo.Sup., 331 S.W.2d 526. Assignments 1 and 15 contain numerous contentions of error concerning the voir dire examination of the panel. It is first said that the court erred in permitting two of the jurors to be questioned out of the hearing of the rest of the panel. The transcript reveals two instances in which jurors were called to the bench and questioned briefly out of the hearing of the other members of the panel. That action was taken by the court when it became apparent that the jurors were confused and were about to make remarks which the remainder of the panel should not hear. There was nothing improper in following that procedure and defendant could not have been prejudiced thereby. Juror Martin was excused from the panel when he indicated that he was prejudiced against sending men to the penitentiary because of 'medical conditions there' and that defendant 'would be better off by far in a hospital.' There is no merit in defendant's contention that such was error. The statement of Mr. Martin indicated that he would have difficulty in following the court's instructions as to punishment in the event defendant was found guilty. The court did not abuse its discretion in excusing him. The motion also contains a complaint pertaining to the action of the court in excusing juror Millikin upon challenge by the State. The transcript discloses that Mr. Millikin was not challenged by the State but by the defendant and hence defendant is in no position to complain of the action of the court in excusing him.

The next voir dire complaint is stated in the motion as follows: 'The court wrongfully prejudiced the entire panel by making a remark during the questioning of juror Virgil L. Bruning as follows: 'First you have to find him guilty.'' A careful review of the examination of Mr. Bruning does not disclose that the court made the statement alleged to have been made. Since there is no proof that such a statement was made we need not consider the assignment further. Defendant also complains that the court erred in overruling his challenge to certain jurors named in the motion, some of whom had knowledge (obtained by newspaper, radio, etc.) concerning the crime and others having been the victim of some type of crime. We have read the voir dire examination of the jurors complained of and find that they stated that they had no opinion concerning the guilt or innocence of the defendant, were not prejudiced against him, and if chosen as jurors could return a verdict in accordance with the evidence and instructions of the court. It is obvious that no error resulted from the failure of the court to discharge those members of the panel.

The final assignment relating to the voir dire examination of the panel is as follows: '(g) The court wrongfully restricted defendant from asking the jury panel if they were in sympathy with certain propositions concerning burden of proof required in a criminal case.' We have carefully searched the transcript and do not find any proof therein as to that assignment. It therefore follows that said assignment must be ruled adversely to defendant.

The next assignment challenges the sufficiency of the information upon the ground that it did not contain an allegation that the acts were committed by defendant 'with intent to convert the same to his own use without an honest claim to said money or property on the part of the defendant, and with felonious intent to permanently deprive the said Walter Diessl of his ownership therein and without the consent of the said Walter Diessl.' In considering a similar contention we recently stated that it is 'unnecessary to allege a felonious intent on the part of the defendants to convert the money to their own use and to deprive the owner thereof.' State v. Moody, Mo.Sup., 312 S.W.2d 816, 818. The information herein followed the language of Section 560.120 and was sufficient to charge the offense of robbery in the first degree.

Another assignment relates to certain testimony of officer Ziegenbein who arrested defendant and his associates. It is contended that said testimony was prejudicial to defendant because it would give the jury the impression that defendant was engaged in the commission of another crime at or about the time of his arrest. Reference is made to testimony relating to (1) the bullet hole in the car, (2) the color of the car, and (3) the four topcoats, some of which contained guns. We do not think the evidence complained of should have been excluded for the reason stated. While it might create a suspicion that defendant was not a law-abiding person, it certainly did not prove that he had committed a crime. The officer arrested the men because he observed the bullet hole in the car which caused him to be suspicious of them. However, the bullet hole could have resulted from the accidental discharge of a weapon. The testimony explained the reason for the arrest, and it did not show that defendant had committed a crime. The other testimony complained of (color of the car and guns in nearby topcoats) would obviously not show that defendant had committed a crime. In connection with this assignment defendant complains of the admission in evidence of the gun in Whitaker's possession at the time of his arrest and a pair of black shoes taken from the car which defendant had taken to the garage in St. Louis. Mrs. Diessl identified the gun taken from Whitaker as the one used by him when he entered the Diessl home on the occasion in question. Defendant admitted to officer Ziegenbein that the shoes belonged to him, and Mrs. Diessl testified that they were the shoes worn by defendant while he was guarding her at the time of the robbery. We rule that the Whitaker gun and the black shoes were sufficiently connected with the commission of the crime charged to make them admissible in evidence.

Defendant was wearing a mask while he was in the Diessl home. In identifying defendant as the masked man who guarded her Mrs. Diessl mentioned as one item which enabled her to make the identification that he had 'large dark brown eyes.' Upon her cross-examination the following appears: 'Q. At the time of the preliminary hearing did you state, when you were questioned by counsel, that you noticed that the defendant had large brown eyes? * * * A. The only thing I can say is that I cannot honestly say whether I did or didn't.' Counsel for defendant then handed the witness a transcript of her testimony at the preliminary hearing and requested that she read all of it (apparently to herself) so that she could give a definite answer to his question 'as to whether or not she mentioned that the defendant, Romprey, had large brown eyes, at the preliminary.' Upon objection the court ruled that such was 'improper impeachment of the witness.' It is contended that the court erred in so ruling.

It should be borne in mind that defendant does not contend that Mrs. Diessl gave testimony at the preliminary hearing which contradicted her testimony at the trial to the effect that she noticed that the person guarding her had large dark brown eyes. He merely contends that she failed to testify to that fact...