State v. Sarkis, 46434

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: State v. Sarkis, 313 S.W.2d 723 (Mo. 1958)
• Decision Date: 09 June 1958
• Docket Number: No. 2,No. 46434,46434,2
• Parties: STATE of Missouri, Respondent, v. Ernest Paul SARKIS, Appellant

Page 723

313 S.W.2d 723

STATE of Missouri, Respondent, v. Ernest Paul SARKIS, Appellant.

No. 46434.

Supreme Court of Missouri, Division No. 2.

June 9, 1958.

No appearance for appellant.

John M. Dalton, Atty. Gen., Winston Cook, Sp. Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

Ernest Paul Sarkis was found guilty of an assault with intent to kill Louis Folkerts and his punishment was assessed at three years' imprisonment by the jury. Section 559.190 RSMo 1949, V.A.M.S. Defendant appealed from the judgment entered thereon. He has filed no brief. His motion for new trial questions the submissibility of the State's case, the opening statement of the State's attorney, and the admissibility of certain evidence.

Defendant offered no witness. The evidence most favorable to the State and the reasonable inferences to be drawn therefrom are for consideration in determining the sufficiency of the State's evidence. State v. Sheard, Mo., 276 S.W.2d 196, 200; State v. Jones, 363 Mo. 998, 255 S.W.2d 801, 804. The jury could find the following facts.

Mrs. Nellie De Francesco operated the 'Club L' tavern at 2818 Lafayette street, in the City of St. Louis, Missouri. The tavern is located on the south side of the street, with two six-foot-wide windows at the front. The bar extends east and west, with a short L at the east end, and accommodates fifteen or more bar stools. Customers on the stools at the long part of the bar face south and those on the L face west. A number of booths are in the tavern. A large 'Club L' neon sign and over one hundred regular light bulbs are on the front of the building. These and the street lights light up the street in front of the tavern. One can see through the windows out into Lafayette street from the bar.

Defendant entered the tavern about 12:45 a. m. November 9, 1955. Mr. and Mrs. De Francesco knew defendant. About twenty patrons were in the tavern. All seats at the bar were occupied. Mr. De Francesco gave defendant his seat at the bar and started talking to Anthony Schulte, who had entered the tavern a short time before with John Trower, Louis Folkerts and Gene Jones. They were seated on bar stools, Folkerts at the curve on the L of the bar.

Defendant ordered a drink and was served by Mrs. De Francesco. She took the money for defendant's drink from the bar and put it in the cash register. When she turned around defendant was in an argument with Schulte. Schulte stated defendant accused them of talking and joking about him, but Schulte denied doing this. Mr. De Francesco told defendant 'Ernie, that man don't say nothing about you. You get your drink and finish up your drink and don't have no trouble.' Defendant started back to his seat at the bar, but came back and commenced giving Schulte 'a cussing out.' Louis Folkerts noticed the argument, stepped over and told defendant that Schulte was a 'buddy of mine'; that defendant had come there for trouble, and that he didn't want Schulte to get into trouble. Defendant then made a fast move with his hand toward his right rear pocket, and Folkerts stated he didn't wait but hit defendant twice, knocking him some distance and to the floor near the door.

When Folkerts knocked defendant down, Mr. De Francesco went to defendant, took a gun out of defendant's coat, saw that it was loaded, and handed it to Mrs. De Francesco, who was behind the bar. Mrs. De Francesco called the police.

Defendant got up, stated he was leaving, and left. Folkerts resumed his seat at the bar. In about five minutes defendant drove west in an automobile on Lafayette street and stopped in the street in front of the tavern. There were no cars parked in front of the tavern. A shot came through the east window of the tavern, a little high, followed by two shots through the window a little lower. By that time many customers in the tavern had dropped to the floor. Mrs. De Francesco, back of the bar, said she did not have sense enough to move. Witness Folkerts testified that he was then at the bar in a half-sitting and half-standing position, and that he was six feet one inch tall. Mrs. De Francesco testified she recognized defendant on the front seat of the automobile 'behind the wheel,' 'kind of turned around,' with his arm out of the window, a pistol in his hand and doing the shooting. She stated defendant also shot through the west window. Mr. De Francesco saw defendant in the car, alone, saw him plainly, saw him shooting, and stated three or four shots came through the windows of the tavern. Five or seven shots were fired. Schulte testified that one of the bullet holes 'was almost directly over Lou Folkerts' head.' There were no bullet holes in the windows before this shooting.

The police arrived after the shooting. Officer Murray Beech stated he found two spent bullets on the floor in the L towards the back bar and one in the ceiling.

Defendant contends the court erred in not declaring a mistrial when the State's attorney told the jury in his opening statement the evidence would show that defendant was apprehended November 10, 1955, and 'that each of the persons present in the tavern that evening identified this defendant as the one * * *'; and also when witness Folkerts, in answer to whether he had seen defendant after the evening of the shooting, said: 'Yes, to identify him.' A similar situation developed while Mr. De Francesco was on the stand. The declaration of a mistrial rests largely in the discretion of the trial court. In the above instances the court sustained defendant's objections and instructed the jury to disregard the State's attorney's statement and the answers of witnesses Folkerts and De Francesco but denied defendant's request for a mistrial. Aside from possible other reasons not necessary to develop here, there is no sufficient basis for holding the court abused its discretion in refusing to discharge the jury. State v. Vidauri, Mo., 293 S.W.2d 955, 956[2, 4]; State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877, 881[12, 13]; State v. Walker, Mo., 46 S.W.2d 569 570. Consult State v. DePoortere, Mo., 303 S.W.2d 920, 924.

Officers Murray Beech and Fred Akiki answered the call to Club L that night. Defendant objected to Officer Beech being asked if he received 'any information as to how all this had occurred' on the ground the question called for hearsay testimony. The court overruled the objection, stating the question did not call for the information the officer received, but only whether he received any information. The witness answered 'Yes, sir.' Police officers receive information of occurrences not in their presence that they may discharge their duties and protect the public. The details of the information received may be hearsay but that they were informed is a fact and explanatory of their subsequent action. 22 C.J.S. Criminal Law Sec. 718, p. 1229. Then followed: 'Q. Did you later put out an order for the arrest of this defendant? A. Yes.' Defendant's objection to the last question and answer was sustained and the jury instructed to 'completely eliminate the question and answer from your minds.' The foregoing is not the situation disclosed by the record in State v. Chernick, Mo., 278 S.W.2d 741, 747. We find no abuse of discretion in the trial court's denying defendant's request for a mistrial.

Testimony of witnesses that unidentified persons in the tavern 'hollered': 'Mr. Sarkis'; 'There he is back'; 'Sarkis out there'; 'There he is outside' when the shooting started and the customers commenced to drop to the floor of the tavern were admissible as part of the res gestae. State v. Fletcher, Mo., 190 S.W. 317, 320; State v. Sexton, 147 Mo. 89, 48 S.W. 452, 456(6); State v. Kaiser, 124 Mo. 651, 28 S.W. 182, 187(3); State v. Lowry, 321 Mo. 870, 12 S.W.2d 469, 473.

Mr. De Francesco testified that the gun he took from defendant in the tavern and handed to Mrs. De Francesco was loaded. She testified she gave the gun to an officer when the police arrived. Officer Murray Beech testified that the gun Mrs. De Francesco handed him was loaded. Defendant complains of the admission of this gun in evidence and Officer Beech's testimony that it was loaded when handed to him because the evidence amounted to proof of another crime. Defendant's unjustified accusations against Schulte; Folkerts' intervening on behalf of Schulte and stating to defendant that defendant was trying to start trouble; Folkerts' knocking defendant to the floor when defendant made a fast move toward his rear pocket; Mr. De Francesco's taking the gun from defendant's pocket, ascertaining that it was loaded and...