State v. Simon, 49476

Citation375 S.W.2d 102
Decision Date10 February 1964
Docket NumberNo. 49476,49476
PartiesSTATE of Missouri, Respondent, v. Raymond N. SIMON, Appellant.
CourtUnited States State Supreme Court of Missouri

Theo. F. Schwartz, Charles M. Shaw, Clayton, for appellant.

Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Jefferson City, for respondent.

BOHLING, Commissioner.

Raymond N. Simon appeals from a judgment imposing a sentence of three years' imprisonment under the habitual criminal act for stealing property of the value of more than $50. Secs. 560.156, 556.280. (Statutory references are to RSMo 1959 and V.A.M.S.) He alleges error in the admission and rejection of evidence and the refusal of instructions.

Mrs. Gertrude Perjenski was a store detective for Stix Baer & Fuller, Inc., a corporation, at its 'River Roads' store in Jennings, St. Louis County, Missouri. About 1:30 p. m. August 7, 1961, Mrs. Perjenski noticed four women and a man looking at mink stoles displayed on hangers on a pipe rack in the basement of the store. The man was looking at one stole after another. The women moved on. The man remained for a few minutes and then left, going up on the escalator. Mrs. Perjenski remained in the basement. In a few minutes she noticed this man return and head for the mink stoles. He was later identified as defendant's brother Joe Simon. She stationed herself where she could see what was going on 'real good.' Joe Simon was the only person at the mink stole rack. About five minutes later defendant, carrying a 'satchel,' joined Joe Simon. Defendant opened the satchel, held it open, and Joe Simon 'snatched' a mink stole off the rack and dropped it in the satchel 'real fast.' Defendant closed the satchel and started out of the store, walking up the stairs. The witness followed him and saw him go to a Thunderbird automobile, open the trunk, put the satchel in the trunk, and get into the car. Mrs. Perjenski returned to the basement and saw Joe Simon just going out of the door on the north side. She followed him. He waited at the northeast corner for some time. Witness stopped a passing police car and asked them to go to the Thunderbird car because she knew the man had a mink stole that belonged to the store in its trunk. There was testimony establishing that the 'sale price' of this mink stole was $139.00. Defendant was arrested approximately two blocks from the River Roads store. Later, the mink stole taken from the store was found in a brief case in the trunk of the car.

Defendant's cross-examination of State witnesses Mrs. Perjenski and Officer Alfred T. Zlotopolski developed that Mrs. Perjenski gave a written statement to the county police department and Officer Zlotopolski made a written report with respect to the arrest of defendant. These writings were not used by either witness in testifying. Defendant's request that each be produced for his inspection to determine whether or not any discrepancies existed between the writing and the testimony of the respective witness for the purpose of cross-examination was refused. Defendant contends prejudicial error resulted, citing State v. Tippett, 317 Mo. 319, 296 S.W. 132; Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, and Bergman v. United States, 6 Cir., 253 F.2d 933, following the Jencks case.

This issue stands ruled against defendant so far as it involves the police report of Officer Zlotopolski in State v. Cochran, Mo., 366 S.W.2d 360.

Defendant's State v. Tippett case was expressly overruled on this issue by Court en Banc in State ex rel. Missouri Pac. R. Co. v. Hall, 325 Mo. 102, 27 S.W.2d 1027, 1028, and see also State ex rel. Page, Pros. Atty. v. Terte, 324 Mo. 925, 25 S.W.2d 459, 461. Speaking to Sec. 510.030 and Criminal Rule 25.19, V.A.M.R., with respect to the production of documents or papers, we quoted in State v. Redding, Mo., 357 S.W.2d 103, 109, the following from State v. Kelton, Mo., 299 S.W.2d 493, 497: "'A mere suspicion that it [a document] contains such evidence does not warrant an order for its production.' State ex rel. Page v. Terte, 324 Mo. 925, 25 S.W.2d 459, 462[2, 3]. The production of books and papers under the statute 'is not authorized upon the possibility of the impeachment of witnesses or for prying into an adversary's preparation for trial.' State v. McDonald, 342 Mo. 998, 119 S.W.2d 286, 289." See also State v. Crayton, Mo., 354 S.W.2d 834, 837; State v. Gilliam, Mo., 351 S.W.2d 723, 727; State v. Miller, Mo., 368 S.W.2d 353.

Palermo v. United States, 360 U.S. 343, 353, n. 11, 79 S.Ct. 1217, 3 L.Ed.2d 1287, and Scales v. United States, 367 U.S. 203, 257, 258, 81 S.Ct. 1469, 6 L.Ed.2d 782 (discussing the Jencks statute, 18 U.S.C. Sec. 3500), are to the effect that the procedure laid down in the Jencks case was a rule of evidence and was not required by provisions of the Federal Constitution. See also State v. Kelly, 249 Iowa 1219, 91 N.W.2d 562, 563[1-4]. In holding neither the State nor an accused ordinarily has any right to examine the confidential files of the other, the Indiana Supreme Court stated in Anderson v. State, 239 Ind. 372, 156 N.E.2d 384, 385: 'The United States Supreme Court in the case of Jencks v. United States, supra, held that 'justice' required that the accused be permitted to inspect documents or memoranda of statements made by a witness in the preparation of the case. We do not question the right of the United States Supreme Court to establish rules of practice and procedure for the federal courts. However, we are neither responsible for nor bound by such rules.'

The trial court's ruling was proper.

Defendant contends the court erred in refusing to give his instruction on an alibi. There was testimony supporting a finding defendant knew nothing about the theft. We have said: '[A] defendant is entitled to have any theory of innocence submitted to a jury, however improbable that theory may seem, so long as the most favorable construction of the evidence supports it.' State v. Kinard, Mo., 245 S.W.2d 890, 893, and cases cited. A jury could find the following facts from defendant's evidence.

The Simon family operated Evergreen Gardens, Inc., in Florissant. Defendant, in a company-owned Ford Thunderbird, drove his brother Joe to the River Roads store and let him out, telling Joe to meet him in the coffee shop in forty-five to sixty minutes. Defendant proceeded to his brother Don's home, a ten to fifteen minute drive, for some drawings to replace some shrubs. Finding no one at home, defendant got the plans from the house and returned to the River Roads store. He looked for Joe but did not find him in the coffee shop. He then went into the Stix River Roads store, a very large store. He looked for Joe in the basement and on all three floors. He was in the store thirty to forty-five minutes. He had no brief case. He never saw the stole prior to the trial, did not put it in the trunk of his car, and: 'Q When you were in the basement level store, were you by yourself? A By myself. Q Never saw your brother there at any time? A Other than dropping him off that morning I never saw him. Q You were never with him? A Never with him.'

Joe Simon testified: He entered the store, carrying a brief case, and went to the basement. He had a saleslady model the mink stole, but thought it was too expensive. She replaced it on the rack and left. He took the stole five or ten minutes later, put it in his brief case, left the store, saw his company's Thunderbird, and put the brief case and stole in the trunk of the car. 'Q Did your brother in this cause ever have any knowledge of the fact you had the item in the brief case? A Any knowledge I took the mink from the store? Q Yes. A No, sir. Q And you put it in his car? A Yes, sir. Q At no time was he with you in the store? A No, sir, not in the store; no, sir.'

From defendant's and Joe's testimony defendant was in the store looking for Joe at the time Joe took the stole but was not present at the scene at the time the offense was committed, did not participate in the offense and knew nothing about it.

'The word 'alibi' means 'elsewhere; in another place." State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701, 706. A defendant does not have the burden of establishing an alibi. If all the evidence, including that on alibi, raises a reasonable doubt as to his guilt he is entitled to an acquittal. State v. Hubbard, supra[11-14]; State v. Taylor, 134 Mo. 109, 152(7), 35 S.W. 92, 102(7); State v. Edwards, 109 Mo. 315, 322(III), 19 S.W. 91, 92(3) (stating, in effect, if the defense be considered frivolous, that question is for the jury). It has been considered that: 'One phase or application of that rule would seem to be that it is not necessary that the alibi evidence should cover all the time in question so fully, and relate to another place so remote, that it would be physically impossible, if this evidence were true, for the defendant to have committed the crime; but that even if the evidence offered to prove the alibi does not meet these requirements, it may be sufficient to raise a reasonable doubt of guilt.' Annotations, 29 A.L.R. 1185(IV), 1186; 124 A.L.R. 493. 53 Am.Jur., Trial, Sec. 658. State v. Koplan, 167 Mo. 298, 66 S.W. 967, 969, held failure to instruct on an alibi constituted reversible error where 'defendant testified that he was not present at the commission of the offense.' Fay v. United States (9 Cir.), 22 F.2d 740, involving the possession and sale of intoxicating...

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