State v. Sawyer
| Decision Date | 11 March 1963 |
| Docket Number | No. 1,No. 49194,49194,1 |
| Citation | 365 S.W.2d 487 |
| Parties | STATE of Missouri, Respondent, v. Donald Keith SAWYER, Appellant |
| Court | Missouri Supreme Court |
Charles M. Shaw, Clayton, for appellant.
Thomas F. Eagleton, Atty. Gen., Brick P. Storts, III, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
On September 26, 1961, defendant, Donald Keith Sawyer, was convicted by a jury in the Circuit Court of St. Louis County of the crime of robbery in the first degree by means of a dangerous and deadly weapon. The jury fixed his punishment at five years. After an unsuccessful motion for new trial and allocution, the court entered judgment sentencing defendant to five years in the Department of Corrections of the State of Missouri. This appeal followed.
Although the defendant was represented by counsel at every stage of the proceedings in the circuit court he has not provided this court with a brief. The case is before us on the transcript of the record on appeal and a brief filed by the State. Our duty is to review the valid assignments of error set forth in the motion for new trial. (S.Ct. Rule 27.20, V.A.M.R.), and the portions of the record required by S.Ct. Rules 28.02 and 28.08.
A summary of pertinent portions of the evidence is helpful to an understanding of the assignments of error contained in the motion for new trial.
On August 21, 1961, two young men, Jackie Glen Thompson and Jerry Wayne Walton, left the City of St. Louis to go to California to obtain jobs. Their plan to walk and hitchhike to Pittsburg, Kansas, to the home of Thompson's grandparents. There they expected to obtain sufficient money from the grandparents to buy bus tickets to their California destination.
As they left St. Louis Thompson was carrying a suitcase that he owned which was worth about $6.00. In it were articles of clothing belonging to him and some belonging to Walton, all having an approximate value of $20.00. Additionally, Walton had $65.00 in cash which he divided by giving Thompson approximately $30.00.
The two young men proceeded on Highway 66 to Woody's Quonset Hut, a truck stop in St. Louis County, arriving about 11:00 p. m. They planned to get a ride to a larger truck stop on Highway 66, called 'The Diamonds.' They checked taxicab charges, and learned it would cost $5.00 to $6.00 to go there by cab. Thompson had struck up a conversation with a stranger, William Howard Boyer, and he asked Boyer if he had a car and if he would be willing to take them to 'The Diamonds' for $3.00. Boyer agreed to do so, and was given $3.00. On their way to the car Boyer told them he had a buddy in it who was sleeping.
The automobile had no back seat. Walton who was carrying the suitcase put it in the back on the car floor and sat on it. The sleeping man, who turned out to be defendant, and who owned the 1954 Plymouth car, moved to the center of the front seat, Boyer to the driver's seat and Thompson to the right side of the front seat. After about a ten minutes' drive Boyer pulled over and asked Sawyer to drive, and Sawyer said something. Boyer got out, went around the car and got in the rear on the right hand side, Walton moved behind the driver's seat, and defendant moved to the driver's seat. They proceeded down the road for a couple of minutes with defendant driving when Thompson heard Boyer say, Thompson turned around and could see the outline of a gun in Boyer's hand.
Thompson testified that Sawyer told Boyer, "Put that thing away.' He said, 'Don't be foolish,' jusk knock it out, in other words; so then Boyer says, 'Well,' he says, 'I'm drunk enough I'd just as soon blow their heads off." Walton made no move to give over his money. Boyer then fired a shot in front of Walton's face, and when Walton was slow to respond, again fired the gun. As ordered, both Walton and Thompson then gave over their wallets containing their money and other items such as selective service cards and drivers' licenses. Then defendant said, "Well, we'll just drop them out somewhere where they can get a ride.' Boyer said, 'Okay." Defendant stopped the car just east of Pacific, Missouri, between Eureka and Pacific, in front of a closed filling station. As Thompson and Walton started to get out of the car. 'Boyer asked Sawyer if they wanted the suitcase and Sawyer said 'yes,' so he said 'Get out and leave the suitcase in.'' Sawyer said he 'wanted the suitcase' and said to Boyer 'Keep the suitcase.'
Walton's description of this part of the incident was that after Boyer shot the gun Sawyer told Boyer "Man, put that thing away.' And Boyer says, 'No,' he says, something about, 'Forget it,' he says, 'I'm just drunk enough to shoot these guys,' he said, 'We got their money.' * * * finally they pulled over and let us out and Boyer asked Sawyer, he says, 'Do you want that suitcase?' And Sawyer says, 'Yes, get it.' So they let us out and they took off, and Jack got the license number.'
The two boys walked ten or fifteen yards from where they were let out, and there found an outside telephone booth by the filling station, called the Highway Patrol and reported the entire incident. Thompson had written down on a match cover the license number of the automobile in which they had been robbed and he gave that number to the Highway Patrol, and later to the Fenton Police.
About 2:00 a. m. defendant's car was observed by the Highway Patrol and the Fenton police on Highway 66 near Woody's Quonset Hut. They chased it and overtook it. The defendant and Boyer were still in it as was Thompson's suitcase which had been opened and its contents gone through. Boyer still had some of the contents of the boys' wallets, including the drivers' licenses and selective service cards.
We turn to defendant's motion for new trial to examine his contentions of error, the first being that the venue of the case according to the evidence was not shown to be in St. Louis County. However, the evidence touching the venue question does show that the robbery occurred in St. Louis County. Trooper Scheu stated that right after their telephone call he met Thompson and Walton east of Pacific, Missouri, east of the stop light just west of the railroad tracks. This coupled with Thompson's testimony that he walked only 10 or 15 yards to a phone, then called the highway patrol and waited at this phone booth until the highway patrolman arrived is sufficient to support a finding that the robbery occurred in St. Louis County. There was other evidence indicating the eastern portion of Pacific, Missouri, and Highway 66 on east of Pacific, Missouri, was in St. Louis County. Additionally, we note defendant's attorney during the trial must have thought there was proper venue: We find no merit in defendant's first contention.
Secondly, defendant contends the trial court abused its discretion by permitting the rebuttal testimony of Officer Scheu. Defendant had taken the stand and testified in his own defense. His version of the incident was that while he was driving down the highway he heard a gun go off and turned around and saw Walton and Boyer wrestling over the gun. He indicated it was Walton who must have had a gun and who was attempting to rob Boyer. He denied he or Boyer had robbed anyone. He stated the draft cards and drivers' licenses did not come from Thompson's and Walton's wallets but had been found in the suitcase the boys had voluntarily left in the car. He testified he told all this to Trooper Scheu shortly after his arrest. Trooper Scheu at the close of defendant's evidence was recalled to rebut defendant's statement that he had told the above version of the incident of Officer Scheu. Thereafter, defendant was permitted to return to the witness stand to surrebut Officer Scheu's rebuttal testimony.
Clearly the trial court did not err to defendant's prejudice. As pointed out in State v. Lewis, Mo.Sup., 137 S.W.2d 465 467, 'Where a court admits evidence in rebuttal and then gives the defendant full opportunity to explain or rebut such evidence, no rights of the defendant are violated.' Additionally, the scope of rebuttal testimony is largely within the sound discretion of the trial court, and, unless the trial court has abused its discretion to the prejudice of defendant an appellate court will not reverse on that ground, even though the evidence is not strictly or entirely rebuttal evidence. State v. Dees, Mo.Sup., 276 S.W.2d 201; State...
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