State v. Smith, 45588

• Decision Date: 11 February 1957
• Docket Number: No. 45588,No. 1,45588,1
• Citation: 298 S.W.2d 354
• Parties: STATE of Missouri, Respondent, v. Daniel Patrick SMITH, Appellant
• Court: Missouri Supreme Court

Page 354

298 S.W.2d 354

STATE of Missouri, Respondent, v. Daniel Patrick SMITH, Appellant.

No. 45588.

Supreme Court of Missouri, Division No. 1.

Feb. 11, 1957.

Kenneth K. Simon, Kansas City, for appellant.

John M. Dalton, Atty. Gen., J. Richard Roberts, Special Asst. Atty. Gen., for respondent.

VAN OSDOL, Commissioner.

Defendant, Daniel Patrick Smith, was convicted of robbery in the first degree, Sec. 560.120, RSMo 1949, V.A.M.S. Punishment was assessed by the jury at five years in the penitentiary; but the place of confinement was commuted, and defendant was sentenced to confinement for five years in the intermediate reformatory. Defendant has appealed, but has filed no brief herein. In our review, we shall look to defendant's motion for a new trial for his assignments of error. State v. Rush, Mo.Sup., 286 S.W.2d 767.

By assignments Nos. 1 and 2, defendant asserts error of the trial court in refusing to direct a judgment of acquittal. More particularly the two assignments question the sufficiency of the evidence in showing the identity of defendant as a participant in the robbery.

The State introduced evidence tending to show that Tom Murray, in the evening of December 31, 1955, went to a drug store on a corner of 12th and Troost in Kansas City, and, having bought some cigars, left the drug store and walked along the west side of Harrison Street. Murray heard a noise behind him and, as he turned around to look, 'three men jumped' on him. He was twice struck above the right eye and twice knocked down. The three assailants 'went through' his pockets and took his purse containing about eleven dollars. He did not clearly see the other two men, but he saw the man who struck him. The man 'had a leather jacket on * * * that big fellow ('he must be five foot nine') hit me, this fellow here.' There was a street light nearby in the center of the street. The man who struck Murray was 'right up close' to him. The man 'was leaning down right over me, I was looking up at him, that is when he hit me the second time I fell.'

Murray was taken to a hospital where the laceration above his right eye was repaired by a seven-stitch suture. Within a few minutes police officers apprehended defendant and one Johnson in the vicinity of the place of the robbery. The officers testified that defendant was wearing a dark-colored leather jacket, and Johnson a light-colored sport coat. The officers took defendant and Johnson to the hospital where Murray identified defendant as his assailant and a participant in the robbery. The identification first was made when defendant had on the dark-colored leather jacket, and again when defendant and Johnson were subsequently brought into Murray's presence after defendant and Johnson had been required to 'switch' coats. The following morning at the police station Murray identified defendant at a 'show-up' where defendant was 'lined up' with three other colored men.

We are of the opinion that the evidence is substantial in supporting the conviction of defendant as a participant in the robbery. There can be no real question of the substantiality of the State's evidence in tending to show that a robbery was committed by violence to the person of Murray. The robbery was committed, according to the witness Murray, at a place near a light illuminating the street. The man who actually struck the blows in the felonious encounter was 'right up close' to Murray. This man was 'leaning down right over' Murray, who was 'looking up at him.' The evidence of the proximity of the witness Murray to his assailant in the lighted street when the robbery was committed, enabling the witness to observe his assailant, and the witness' positive identification of the defendant as the assilant and participant in the commission of the crime as charged, constituted evidence of substantial probative value, and was, in our opinion, sufficient in supporting the submission and the verdict and judgment of conviction. State v. Davis, Mo.Sup., 161 S.W.2d 973; State v. Preston, Mo.Sup., 184 S.W.2d 1015; State v. Dupepe, Mo.Sup., 241 S.W.2d 4; State v. Brown, Mo.Sup., 298 S.W.2d 351.

In assignment No. 3 of the motion for a new trial, defendant contends the trial court erred in subjecting defendant to trial in the Circuit Court. It is asserted that the record shows defendant is a minor sixteen years of age; that the information had been filed before 'the Juvenile Court had waived jurisdiction in this case over Defendant; and no new information was filed in this case and no preliminary arraignment and hearing held after the Juvenile Court had waived jurisdiction. Therefore the proceeding is a nullity.'

Herein, the transcript on appeal, which was to be settled, prepared, served and filed in the manner provided in civil cases, Sec. 512.110, RSMo 1949, V.A.M.S.; Supreme Court Rule 28.08, 42 V.A.M.S., contains no transcript of any proceedings prior to the filing of the information, January 18, 1956, under which defendant was tried and convicted. The transcript does show that on March 1, 1956, defendant moved the dismissal of the case and 'that the defendant be remanded to the...