State v. Spraggins, 49201

• Decision Date: 04 June 1963
• Docket Number: No. 1,No. 49201,49201,1
• Citation: 368 S.W.2d 407
• Parties: STATE of Missouri, Respondent, v. Jerry SPRAGGINS, Appellant
• Court: Missouri Supreme Court

Page 407

368 S.W.2d 407

STATE of Missouri, Respondent, v. Jerry SPRAGGINS, Appellant.

No. 49201.

Supreme Court of Missouri, Division No. 1.

June 4, 1963.

Thomas F. Eagleton, Atty. Gen., .paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.

HOLLINGSWORTH, Judge.

By an information filed in the Circuit Court of the City of St. Louis, defendant was charged with the crime of robbery in the frist degree, as defined in Sec. 560.120 RSMo 1959, V.A.M.S., (to which revision all statutory references herein are made unless otherwise indicated). The information also alleged the prior conviction of defendant of the felony of escaping from imprisonment upon a criminal charge, before conviction, for which he had been sentenced to and served a term of six months imprisonment in the St. Louis City Workhouse. Trial to a jury, at which defendant was represented by court-appointed counsel, resulted in a verdict finding defendant guilty of robbery in the first degree as charged in the information. After hearing evidence outside the presence and hearing of the jury, the trial judge found that defendant had also been convicted of and imprisoned for the felony of escaping from imprisonment prior to conviction as alleged in the information. Defendant's motion for new trial was thereafter overruled and he was by the court sentenced to custody of the Defartment of Corrections of the State of Missouri to be imprisoned in the manner provided by law for a term of seven years. Defendant, by his court-appointed counsel, perfected his appeal to this court, but no brief has been filed in his behalf. We, therefore, review all of the sufficiently alleged assignments of error set forth in his motion for new trial, as required by S.Ct. Rule 27.20, and the portions of the record required by S.Ct. Rule 28.02, 4 RSMo 1959, pp. 4923 and 4925; 1 V.A.M.R., pp. 207 and 235.

The first assignment is that the trial court erred in denying defendant's oral motions for acquittal made at the close of the state's case and at the close of all of the evidence in the case. By offering and adducing evidence in his own behalf, defendant waived any claim of error as to his motion for acquittal offered at the close of the evidence adduced in behalf of the state. State v. Reece, Mo., 324 S.W.2d 656, 658; State v. Brookshire, Mo., 353 S.W.2d 681, 687. The motion for new trial asserts as grounds in support of the oral motion for acquittal made at the close of all of the evidence (as well as the motion for acquittal made at the close of the state's case in chief) that the evidence in behalf of the state was so contradictory and inconclusive as to defendant's being one of the two persons who committed the robbery herein alleged as to be of no probative value. A statement of the evidence follows.

On and prior to December 23, 1960, Fresno Cleaners, Incorporated, operated one of its several cleaning shops at 3500 Cass Avenue in St. Louis. Mrs. Lena Tims was and for several years had been in charge of it. A girl friend of hers, Patricia Ann Robertson, fifteen years of age at trial time (August, 1961), frequented the place as a visitor of Mrs. Tims. About three p. m., on December 23, 1960, two negro men entered the shop. Both men held their hands in their pockets as if they had weapons. One of them handed Mrs. Tims a piece of paper on which was printed the words: 'Be quiet, this is a stickup, get me all the money and won't get hurt.' That man (later identified by Mrs. Tims and Patricia Ann as the defendant) went to the end of the counter, took Patricia Ann by the back of the neck and led her to the rear of the shop. Mrs. Tims was frightened. At the command of the other man, Mrs. Tims opened the register and he took money from it. The man who led Patricia Ann, who was also frightened, to the back of the shop took money from a cigar box in a rear window sill of the shop. The total amount of money taken by the two men amounted to $26.00. These men then placed Mrs. Tims and Patricia Ann in a bathroom, took some clothing from a rack and left the premises. Mrs. Tims called the police. Thereafter, Mrs. Tims and Patricia Ann viewed defendant, in June, 1961, at the Ninth District Police Station. He was in a police lineup consisting of, as Mrs. Tims said, three men, or as Patricia Ann said, two men. Each of them then and there pointed out defendant as the man who handed Mrs. Tims the note; and, at trial, they again pointed defendant out as the same man, each saying that she was absolutely sure defendant was one of the two holdup men who committed the robbery.

On cross-examination, Mrs. Tims said defendant was brown skinned, wore a light top coat and she thought was wearing a dark hat and dark shoes. He had a gold front tooth and 'a sort of a dark mark on his cheek.' The other man was dark, very dark. Upon request of counsel for defendant, she pointed out a dark spot on the right side of defendant's face. She had priorly told the police she was not sure as to which side of his face the dark spot was on. On December 31, 1960, a police detective brought a package of pictures (12 to 15 of them) to the shop. Mrs. Tims looked at all of them, picked out the picture of defendant as the man who had handed her the note and had led Patricia Ann by the back of the neck to the rear of the shop. She had seen defendant prior to the robbery but did not know him. She later learned at the police station that his name was Jerry Spraggins.

On redirect examination, Mrs. Tims testified that she now knows there are two Spraggins boys, defendant Jerry and his twin brother, Perry. Defendant is the taller of the two. Perry has a scar on his eye. She could tell them apart. She also saw Perry at the police lineup and told the officer at that time that Perry was not the one who held her up. At the trial, she was shown photographs of defendant and his twin brother, Perry, and correctly identified one of the pictures as a picture of defendant and one as a picture of Perry.

On recross-examination, Mrs. Tims further testified she had worked for Fresno Cleaners at 3500 Cass and prior thereto at its shop across the street for a total of about ten years. When the robbery occurred, she did not know defendant and Perry were brothers. She knew that the one who robbed her, defendant, was the one she had seen before. After learning that he had a twin brother and seeing that brother, she knew that the latter was not one of the two men who committed the robbery.

Patricia Ann Robertson further testified: She was sitting by the counter reading a paper at the time of the robbery. She did not see the men enter. The first she knew of the robbery was when one of the men (whom she later identified as defendant at the police lineup and at trial) took her by the back of the neck and led her into the back of the shop. He there took money from a cigar box on the window sill. She described this man (defendant) to the police as being tall, dark and having a dark spot on his jaw and then wearing a dark coat. Following the robbery, she had told the police she did not know the man's name but she had seen him before.

Police Detective Jerome Weingart assisted in the investigation of the robbery. On December 31, 1960, he exhibited 15 or 20 photographs to Mrs. Tims. She selected from among them a photograph of the man who she said robbed her. That photograph was a picture of defendant. An order was put out for his arrest and he was arrested in June, 1961.

Police Officer Bouchie testified in behalf of the state: On the day of the robbery, he was directed to go to Fresno Cleaners, 3500 Cass. Mrs. Tims told him of the robbery made by two colored males, about 20 years old, about five, nine, weight about 140 pounds; one had dark skin, one was medium brown, one was wearing a light hat and a light coat; one a dark hat and a dark coat. He put the descriptions given him 'out over the air'; it was his business only to make a preliminary report and department detectives took over from there for the detailed reports.

Defendant did not testify. The evidence adduced in his behalf consisted of the testimony of Mr. Charles B. Baron, defendant's court-appointed counsel. He testified: On the morning of July 14, 1961, he went to the office of the Fresno Cleaners at 3500 Cass Avenue. Mrs. Lena Tims and Patricia Ann Robertson were present. He identified himself to both of them and stated that he was an attorney and represented Jerry Spraggins and would be defending him at the trial. Mrs. Tims told him that she had identified Jerry Spraggins in the police lineup and from pictures as the man she said was one of the two who robbed her shop on December 23rd. He asked her to describe Jerry Spraggins and she described him 'by a gold tooth and by a scar which she said was on the cheek--whether a mark, a dark spot or a scar, she was not positive which, but an obvious spot on the left side of Jerry Spraggins' face.' She said that Jerry Spraggins handed her a note, that she thought it was a laundry ticket, it was handed to her folded up, it was white and she thought it was a laundry ticket for clothes which had been left at her shop by either Marilyn Spraggins, whom she identified as Jerry Spraggins' mother, or by a Mrs. Pitchford, whom she identified as his grandmother. She also stated that the man she identified as Jerry Spraggins went to the end of the counter and she turned and opened the note; that Jerry Spraggins then took Patricia Ann to the back of the store, at which time the other man who was in the store went with her to the cash register. She said she did not get as good a look at defendant as she did at the other man, because the other man was with her throughout the robbery and stood with her at the cash register at that time.

'This court passes upon the credibility of testimony in criminal cases only insofar as it is necessary to determine whether or not the testimony constitutes evidence sufficient to permit reasonable minds to...