State v. Russell
| Citation | 324 S.W.2d 727 |
| Decision Date | 08 June 1959 |
| Docket Number | No. 1,No. 46937,46937,1 |
| Parties | STATE of Missouri, Respondent, v. George William RUSSELL, Appellant |
| Court | United States State Supreme Court of Missouri |
George William Russell, appellant, defendant, pro se.
John M. Dalton, Atty. Gen., E. L. Redman, Sp. Asst. Atty. Gen., for respondent.
By information filed in the Circuit Court of the City of St. Louis, defendant George William Russell, Donald Edward Rutherford and Donald Edward Brown were charged with burglary in the second degree of and stealing from the tavern of Joseph Buschman in said city a safe and its contents in excess of the value of fifty dollars. The information also alleged six former convictions of defendant, his imprisonment in the penitentiary pursuant to each of said convictions, his discharges from imprisonment upon compliance with the sentences imposed upon him, and invoked the additional punishment provisions of the habitual criminal act, Section 556.280 RSMo 1949, V.A.M.S. (The information also charged Rutherford with three such prior felony convictions and Brown with four such convictions.) Upon separate trial of defendant the jury found him guilty of burglary and stealing as charged and further found that he had been formerly convicted of a felony and assessed his punishment at imprisonment in the State Penitentiary for a term of ten years for the burglary and a term of five years for stealing in connection with said burglary.
Following the overruling of his motion for new trial and sentence, he has appealed. He was represented in the trial court by court appointed counsel. In this court, however, he has filed a brief pro se which, although revealing an extensive acquaintanceship with criminal procedure, pays little heed to the valid assignments in his motion for new trial. See S.Ct. Rule 27.20, 42 V.A.M.S. We shall review the valid assignments in the motion for new trial and make use of the brief to the fullest extent possible. S.Ct. Rule 28.02. One of the assignments challenges the sufficiency of the evidence to support the verdict. The evidence introduced in behalf of the State would justify a finding of the following facts:
On January 28, 1958, and for 23 years prior thereto, Joseph L. Buschman owned and operated a tavern at 337-339 North Sarah Street in the City of St. Louis. It is on the west side of the street and immediately north thereof is a gasoline filling station. He also owned and kept in his tavern a locked iron safe, weighing 300-500 pounds, in which he had in excess of $100 in U. S. currency and in excess of $950 in checks. About 12:30 a. m. that night, Mr. Buschman set a burglar alarm maintained by him in the tavern, closed and locked the doors of the tavern and left the premises. The burglar alarm is so arranged that if a door or window of the tavern is opened an alarm is sounded at a central station and in a matter of seconds a police dispatcher is able to notify any patrol car in the immediate vicinity. About 2:02 a. m., Corporal Schmidt, a member of the metropolitan police department, while riding in a one-man patrol car about a block from the tavern, was directed by radio to go to the tavern. As he approached, he saw a 4-door Dodge sedan parked on the sidewalk adjacent to the filling station, about ten feet from the front door of the tavern. Three men (defendant Russell, Rutherford and Brown) were at the back door of the car, on which both front doors and one rear door were open. As Schmidt arrived at the tavern, defendant entered the driver's side of the Dodge car and sat behind the wheel, at which time Rutherford also entered the car and sat beside defendant in the front seat and Brown was in the act of entering the front seat. Schmidt noticed that the front door of the tavern was open and stopped his car at the front of the tavern so that the headlights of his car were shining on the parked Dodge. He drew his pistol and stood in front of the Dodge, when he heard one of the men say, 'Run over him.' The three men were held at gun point until other patrolmen arrived within about two minutes, whereupon Schmidt took defendant from behind the steering wheel of the Dodge. The three men were taken to the police station by police officers who thereafter came to the scene, and an examination of the Dodge and the tavern was made by Schmidt and another officer.
The back seat of the Dodge was out of position and an iron safe, identified by Buschman as the safe kept by him in his tavern, was in the back part of the Dodge. A crowbar, two matched pairs of gloves and two odd gloves were also found in the car. Over objection of defendant, they were admitted in evidence. The safe was opened in the presence of Mr. Buschman at the police station and $104 in currency and checks of the face value of $951 were found therein, all of which was returned to Mr. Buschman. The door frame of the tavern, at the point of the location of the door locks, had been 'jimmied'. It showed fresh scratches and the paint was chipped. A picture of the door showing the scratches and chipped paint was identified by the witness Schmidt as an accurate portrayal of the condition found. On the floor inside the tavern were a 'lockkeeper' (the metal slot in which the door lock is secured), a wheel and parts of a metal caster, which were identified by the witness and, over objection of defendant, introduced in evidence. The top of the bar inside the tavern showed a fresh scratch. A piece of plywood back of the bar had been shattered and the opening was vacant. A photograph, identified as showing the condition found at the back of the bar, was taken. Over objection of defendant, both photographs were admitted in evidence.
Over objection of defendant, the court admitted in evidence (1) circuit court records of the City of St. Louis showing the prior conviction of defendant of the six felonies alleged in the information and (2) State of Missouri Penitentiary records showing his imprisonment and discharge from the penitentiary upon compliance with the sentences imposed upon him pursuant to said convictions.
Defendant testified that he was a taxicab driver for Black and White Cab Company and was so engaged on the night in question; that at 2:00 a. m. that night he was driving his cab, with a man and woman as his passengers, in the vicinity of Sarah and McPherson Streets, about 250 feet from the place where he was arrested; that his taxicab stopped and he could not get the motor started; that he went to the Dodge car (at which he was arrested) to get assistance; that the policeman 'put me in there' (referring to the Dodge car); that a car drove up and an officer jumped out, with a pistol in his hands; that he started to protest and the officer said, 'No, you don't, get back in the car.' He denied that he had ever been in the Buschman Tavern; denied that the gloves found in the Dodge car were his; denied that the crowbar found therein was his or that he had ever seen it prior to the trial; denied that he had ever seen the safe until he saw it at the police station; denied that he in any manner assisted in entering the tavern; and denied that he knew either of the men whom he found at the Dodge car. On cross-examination he was asked if he had ever met Rutherford or Brown in the State Penitentiary, to which his counsel objected on grounds that the question assumed that they were in the penitentiary. After some colloquy the objection was withdrawn and defendant denied that he knew either of them. Defendant then admitted that he was confined in the penitentiary from July 23, 1953, until August 31, 1957, for the crimes of embezzlement by bailee and possession of burglar's tools, but disclaimed that he knew either Brown or Rutherford was there during any part of that time. Thereafter, over objection of defendant, the State was permitted to show by official records that Donald Edward Rutherford was received in the penitentiary on May 22, 1953, and discharged on January 8, 1957, and that Donald Edward Brown was received in the penitentiary on February 11, 1954, and discharged on September 18, 1957.
Defendant's...
To continue reading
Request your trial
-
State v. Gilliam, 48437
...nothing for appellate review. State v. Roberts, Mo., 332 S.W.2d 896, 898[2-4]; State v. Townsend, Mo., 327 S.W.2d 886; State v. Russell, Mo., 324 S.W.2d 727, 733. After a hearing in the absence of the jury at the close of the evidence, the court found defendant was subject to the habitual c......
-
Bosler v. Swenson, 17596.
...shall be deemed waived or abandoned. State v. Smith, 365 S.W.2d 505 (Mo.Sup. 1963). But see State v. Donnell, supra; State v. Russell, 324 S.W.2d 727 (Mo.Sup. 1959); State v. Mace, 295 S.W.2d 99 (Mo.Sup. 1956) where, because of the inadequacy of the pro se briefs, the court examined the ass......
-
State v. Miles, 49415
...S.W.2d 119, 122(4); State v. Reece, Mo.Sup., 324 S.W.2d 656, 660(9); State v. Harris, Mo.Sup., 351 S.W.2d 713, 716(6); State v. Russell, Mo.Sup., 324 S.W.2d 727, 732(11). Error is further assigned in the motion for a new trial on the court's action in giving Instructions 2 and 3 for the rea......
-
State v. Yager
...Mo., 282 S.W.2d 547, 552(8); State v. Fritz, Mo., 379 S.W.2d 589, 590(4); State v. Evans, Mo., 237 S.W.2d 149, 151(1, 2); State v. Russell, Mo., 324 S.W.2d 727, 731(8). In his last point defendant contends that the court erred in giving an instruction on the defense of alibi, because he did......