State v. Sanders

• Decision Date: 08 October 1962
• Docket Number: No. 2,No. 49283,49283,2
• Citation: 360 S.W.2d 722
• Parties: STATE of Missouri, Respondent, v. Mose Wesley SANDERS, Appellant
• Court: Missouri Supreme Court

Page 722

360 S.W.2d 722

STATE of Missouri, Respondent, v. Mose Wesley SANDERS, Appellant.

No. 49283.

Supreme Court of Missouri, Division No. 2.

Oct. 8, 1962.

Martin Anderson, Kansas City, for appellant.

Thomas F. Eagleton, Atty. Gen., Robert R. Northcutt, Asst. Atty. Gen., Jefferson City, for respondent.

EAGER, Presiding Judge.

Defendant was convicted by a jury of first degree robbery. The punishment assessed by the jury was the minimum of five years in the penitentiary, and the court thereafter sentenced defendant to such a term. He has appealed, after an unavailing motion for a new trial. A brief has been filed here on defendant's behalf. A short summary of the evidence will suffice, as the sufficiency of the evidence is not questioned.

The State's evidence reasonably showed these facts: that two Negro men came up to the window or counter of the 'Dairi-Swirl' at 1701 1/2 East Ninth Street in Kansas City, at about 9:45 p. m. on July 14, 1961, and ordered hamburgers; one Carl Ribando was in charge. He proceeded to Cook the hamburgers and when he started to hand the second man his, the man pointed a revolver at him and told him to 'leave the nickels and dimes out'; Ribando took $35 from the cash register, put it in the sack with the hamburger and gave it to the man, whereupon the two left; the man with the revolver wore a red bandanna on his head. The 'Dairi-Swirl' had exterior lighting. Ribando promptly called the police and reported the occurrence; he was later unable to identify the men among suspects at police headquarters. On August 14, 1961, one month later, a man walked up to the window at the same place about 9:00 p. m. and Ribando immediately recognized him as the robber to whom he had given the money previously; this man placed a cigar box on the ledge or counter, and momentarily waited; Ribando did not go to the window but said, 'Wait a minute,' and told his mother nearby to call the police; when she got up to do so, the man walked away. On this occasion the man again wore a bandanna which Ribando thought was blue. After a brief interval, Ribando went outside and noted that this man had walked west on Ninth to Highland Avenue and south on Highland. When the officer came, Ribando reported the events, including his identification of the man, and the two rode south on Highland in the police car. They found defendant (as he turned out to be) walking near Eleventh and Highland and pulled in behind him; Ribando identified him to the officer as the man they were looking for. When the officer called 'hold it,' the man reached in the cigar box which he was carrying and took out a revolver but, as the officer drew his own gun and ordered him to 'drop it,' he did so. The revolver was a .32 caliber, nickel or chrome plated, slightly rusted, and containing three loaded shells and one empty; it was identified at the trial as identical to the one used in the July robbery. A blue bandanna was found in the man's pocket. This man was arrested and is the present defendant; he was positively identified by Ribando at the trial as the one who had robbed him.

The defendant denied all connection with the robbery, testified that he had been drinking in taverns and playing pool on the afternoon of July 14, 1961, and that he was at home or next door from about 6:30 p. m. and during the rest of that evening. In this latter statement he was largely corroborated by two witnesses, Ernestine Rowe and Nina May Winn. Reference will be made to one of these later. Defendant also testified that he found the revolver and the cigar box in the street or gutter on Ninth Street while walking in the neighborhood on the evening of August 14, 1961, and that, while he may have walked by the 'Dairi-Swirl,' he did not stop there at all. He admitted that he had a 'head-scarf' with him on the evening of August 14, which he said he sometimes wore to give his 'hair a wave' when he went to bed, or when the wind was blowing.

Counsel for defendant raises here the inadmissibility and prejudicial effect of several portions of the evidence, apparently assuming that he is permitted to do so under the first assignment in his motion for new trial. That assignment is as follows: 'Because the Court erred in admitting incompetent, irrelevant, immaterial and prejudicial evidence offered by the plaintiff over the objection of this defendant.' Such a general assignment is wholly insufficient under Rule 27.20, V.A.M.R. to preserve any evidentiary point for review. State v. Thomas, Mo., 309 S.W.2d 607, 610; State v. Hathaway, Mo., 269 S.W.2d 57, 61; State v. Turner, Mo., 320 S.W.2d 579, 586; State v. Foster, Mo., 349 S.W.2d 922; State v. Reece, Mo., 324 S.W.2d 656; State v. Howard, Mo., 360 S.W.2d 718. Consequently, we proceed no further with the argument under that point.

A point is also made that the prosecutor was permitted to make inflammatory statements in his closing argument which were not based on the evidence. In the motion for new trial the corresponding assignment was equally general. The particular statements complained of, or at least their substance, should be pointed out; consequently, the assignment in the motion is insufficient to preserve the point for review. State v. Farris, Mo., 243 S.W.2d 983, 988; State v. Howard, supra. We have, of our own motion, examined the remark now complained of; it was: 'You see that is the pattern of criminal psychology, returning to the scene of the crime and making an effort to attempt it the second time.' The objection made at the trial was directed at the suggestion that defendant was back 'to commit another crime.' The statement as made was a fair and permissible inference from all the evidence and, moreover, counsel had permitted the prosecutor to make a substantially similar statement in his initial argument without any objection. There was no error in this ruling, even had the point been preserved.

We next consider an evidentiary point which defendant has raised in his motion for new trial, giving him the benefit of some doubt. This concerns the cross-examination of Ernestine Rowe, one of defendant's alibi witnesses; the point is made that the court permitted a false issue to be introduced, instead of confining the evidence to such as would challenge her veracity and character as a witness. The witness was asked if she recalled talking to Officer Thomas. When an objection to this was overruled, the witness was then asked (before she answered the prior question) if, on a certain day, she had talked with Officer Thomas of the Kansas City Police Department 'about a matter of some stolen money orders'; objection was made that this question did not inquire about any conviction and was inflammatory; this objection was sustained. The witness was then asked if she had ever made any statement 'indicating that you participated with Carol Taylor in the procurement, in the cashing of two checks * * * taken from Ronald Stone * * *.' An objection was overruled and the witness answered, 'No'; she also denied making any...