State v. Stokes
| Decision Date | 08 February 1965 |
| Docket Number | No. 1,No. 50670,50670,1 |
| Citation | 387 S.W.2d 518 |
| Parties | STATE of Missouri, Respondent, v. Anthony Gilbert STOKES, Appellant |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., Jefferson City, Clarence Bradley Mitchell, Sp. Asst. Atty. Gen., Kansas City, for respondent.
Joseph Langworthy, Pacific, Henry D. Menghini, St. Louis, for defendant-appellant.
Defendant, Anthony Gilbert Stokes, was charged with and found guilty of the offense of burglary in the second degree. The court found, as charged, that defendant had been convicted of nine prior felonies (the essential facts concerning same being stipulated) and accordingly fixed his punishment at imprisonment in the penitentiary for a term of nine years. See Secs. 560.070, 560.095(2), and 556.280. (All statutory references are to RSMo 1959, V.A.M.S.). Defendant has appealed from the ensuing judgment.
The State's evidence will support the following statement of facts: W. D. Carter operated a service station located at 3727 Easton in St. Louis, Missouri. George W. Culpepper was employed by Carter as a mechanic. On August 26, 1963, Culpepper quit work at 10:30 p. m. and left the station in a car driven by his cousin. He left his car parked on the filling station premises. A short time later Carter checked all the doors and windows to see that they were locked, and closed the station. At about 11:30 p. m. Culpepper, accompanied by his wife, daughter, and cousin, returned to the station and parked the car on the west side of the building where they sat in the car eating sandwiches. Shortly thereafter, Culpepper saw a man inside the station attempting to pry open a coke machine. There were two lights burning in the building. He got out of the car and looked through one of the windows and saw that the man was wearing a leather cap, a leather jacket, and green trousers. At that time his wife went across the street and called the police. The man in the station ran out the front door and down an alley between Cozzens and Cass Streets, with Culpepper in pursuit. At that point Culpepper lost sight of the man. In a short time the police arrived and he gave them a description of the person whom he had seen in the station and informed them as to where he had last seen him. He then returned to the service station.
Sergeant Zwiefel, one of the officers searching the area, was assigned to the canine division and used a trained police dog in the search. After the search had continued for ten or fifteen minutes the dog barked, indicating that a man was nearby, and Sergeant Zwiefel then (with the aid of his flashlight) saw a man lying face down in the weeds in one of the back yards in that area. He put the dog on a leash and then directed that the person (who was identified as defendant) stand up. The officer then searched the defendant and found 53 nickels and a flashlight in his pockets. A pair of gloves was also found on the ground. The place where defendant was found was 1 1/2 blocks from the service station.
An examination of the service station disclosed that a window in the back of the building had been broken and the glass removed from it. A flashlight and a pair of gloves had been taken from the building, and a peanut vending machine which was operated by the use of nickels was broken into and the coin box removed. A pair of binoculars had been removed from a desk drawer but were found on the work bench.
Shortly after Sergeant Zwiefel arrested defendant he took him to the service station. At that time he was wearing a leather cap, leather jacket, and green trousers. He was identified by both Culpepper and Carter as a customer of the station. Culpepper testified that he had not been able to see the face of the person in the service station but that such person was dressed in the same manner as defendant was dressed when he was brought to the station by the police.
On cross-examination Culpepper testified that while he did not recall smelling the odor of liquor on the defendant after his arrest, defendant did act like he had been drinking as his speech was 'slurred' and he appeared somewhat incoherent.
Mr. Carter identified the flashlight and gloves which the police obtained from defendant as being his property and stated that those items were in the station at the time it was closed on the night in question. Other facts will be stated in the course of the opinion.
Defendant offered no evidence.
The first point briefed is that the court erred in overruling defendant's objection to a statement of the circuit attorney in his closing argument relating to the question of whether fingerprints were taken in the filling station. There was no evidence that any effort was made by the police to obtain any fingerprints. However, in his cross-examination of Patrolman Sartorius, defendant elicited testimony to the effect that the flashlight and perhaps a portion of the binoculars contained good surfaces for obtaining fingerprints. On the basis of that evidence, defendant's attorney argued to the jury that defendant should be acquitted because the State had not proved that he was in the filling station by evidence that his fingerprints had been found therein or on items taken therefrom. In answering that argument the circuit attorney stated: An objection, based upon the fact that the statement was unsupported by the evidence, was overruled.
In support of his contention of error defendant has cited State v. Emry, Mo.Sup., 18 S.W.2d 10, State v. Montgomery, 363 Mo. 459, 251 S.W.2d 654, and State v. Lenzner, 338 Mo. 903, 92 S.W.2d 895. These cases all hold that it is error for the State's attorney, in his argument, to 'use such language as to unmistakably intimate or infer to the jury that he possesses or knows of facts tending to establish the guilt of the defendant on trial, and which are not in evidence, or which for some reason could not be introduced in evidence, or which, if the jury but knew such facts, would cause them to return a verdict of conviction.' State v. Montgomery, 363 Mo. 459, 251 S.W.2d 654, 658. That rule has no application here. The circuit attorney was not attempting to convey to the jury the impression that he knew of evidence, not presented, which, if disclosed, would convince the jury of defendant's guilt. The statement relates to a negative fact, which could reasonably be inferred from the...
To continue reading
Request your trial
-
State v. Ward, 54480
...accurate, was upheld. Other recent cases upholding arrest based on descriptions received by officers from witnesses are State v. Stokes (Mo.Sup.) 387 S.W.2d 518; State v. Hill (Mo.Sup.) 419 S.W.2d 46; State v. Keeny (Mo.Sup.) 431 S.W.2d 95. In a recent federal case, Bailey v. United States,......
-
State v. Goodman
...is under arrest when another takes charge of and control of his movements. State v. Sampson, Mo., 408 S.W.2d 84, 87(3); State v. Stokes, Mo., 387 S.W.2d 518, 522; 1 Restatement (Second) of Torts, § 112, p. 190; 5 Am.Jur.2d, Arrest, § 1, p. 695. There is no room for doubting that the defenda......
-
State v. Crum
...509 S.W.2d 72, 77(1) (Mo.1974); State v. Dunivan, 217 Mo.App. 548, 269 S.W. 415, 417(4) (1925), or to 'stand up', State v. Stokes,387 S.W.2d 518, 522(7) (Mo.1965). Consequently we are inclined to find Byrd's initial command during the second stop, 'Come over to the car', was as coercive as ......
-
State v. Abbott
...his movements. State v. Goodman, supra, 449 S.W.2d at 661(8) (Mo.1970); State v. Sampson, 408 S.W.2d 84, 87(3) (Mo.1966); State v. Stokes, 387 S.W.2d 518, 522 (Mo.1965). The fact that the arresting officer may have characterized the arrest as an arrest "for investigation" is not controlling......