State v. Taylor

• Decision Date: 08 June 1959
• Docket Number: No. 46784,No. 2,46784,2
• Citation: 324 S.W.2d 643,76 A.L.R.2d 671
• Parties: STATE of Missouri, Respondent, v. Charles TAYLOR, Jr., Appellant
• Court: Missouri Supreme Court

Page 643

324 S.W.2d 643

76 A.L.R.2d 671

STATE of Missouri, Respondent, v. Charles TAYLOR, Jr., Appellant.

No. 46784.

Supreme Court of Missouri, Division No. 2.

June 8, 1959.

James J. Rankin, St. Louis, for appellant.

John M. Dalton, Atty. Gen., John C. Baumann, Asst. Atty. Gen., for respondent.

STORCKMAN, Presiding Judge.

The defendant Charles Taylor, Jr., was charged by indictment, jointly with Fred Douglas Williams, and Earl Ray, with an assault upon Mrs. Ernestine Primus with intent to kill with malice and with prior convictions of felonies. Defendant Taylor was granted a severance and upon a separate trial was found guilty as charged, including prior convictions, and the jury fixed his punishment at imprisonment in the State Penitentiary for life. The defendant's motion for new trial was overruled and he has appealed.

At about 12:30 a. m., on February 3, 1957, Mrs. Primus was walking toward her home on 22d Street, between Carr and Biddle, in St. Louis, when she saw three men in a Mercury automobile, cream colored with a dark top. One of the men got out of the automobile and accosted her. He told her that she was looking at the point of a loaded pistol, but she did not see the gun. When the man commanded her to get into the car, she started to run but fell to the sidewalk. As she got up he again told her to 'Get in the car' and hit her with the gun which discharged; he bullet struck her, lodging in her neck. When she screamed and exclaimed 'I am shot', the man let her go; she ran to her home and was hospitalized. She had never seen any of the men before and did not see them well enough to identify or describe them.

Thereafter, at about 4 a. m., in National City, Illinois, about three miles from St. Louis, police officers arrested three colored men riding in a two-toned Mercury automobile, the bottom part of the car was cream colored and the top dark. The defendant was one of the men and his companions were Fred Douglas Williams and Earl Ray. A fully loaded .32 caliber revolver, thrown from the automobile before the arrest, was recovered by the police officers, together with three other live cartridges found on the floor of the Mercury automobile. Tests made with the weapon tended to prove that it was the gun which fired the bullet removed from Mrs. Primus' neck.

There was abundant evidence to prove the commission of an assault upon the person of Mrs. Ernestine Primus with intent to kill with malice. The appellant contends, however, that 'there was no evidence whatsoever that the gun was in the possession of defendant, or was used by him, at the time of the wounding of Ernestine Primus.' While the defendant did not take the stand, a transcript of his testimony in another case tended to establish that he got the gun at about 6 p. m. on the Saturday night in question 'in pawn' from another player in a crap game; that he took the gun with him and 'still had it' at the time he picked up the girl, Shirley Riley, and at the time the police hailed his automobile in National City; and that he threw the gun from the car into a muddy field in order to avoid being charged with having a concealed weapon. Johnny Day testified that he saw the defenant with a brownhandled revolver sticking from his belt similar to the gun in evidence at a party on this Saturday night. Shirley Riley testified that she saw the defendant with the pistol, Exhibit No. I, in his possession on February 3d between 1 a. m. and 1:30 a. m. Lieutenant Frank Ruff, an expert in the identification of firearms, testified that the spent bullet removed from Mrs. Primus' neck was fired from the revolver in evidence, State's Exhibit No. I. The defendant contends that this evidence does nothing more than raise a suspicion or a probability of guilt and is insufficient to sustain his conviction.

The defendant correctly contends that where the state relies upon circumstantial evidence to establish the guilt of the accused, the facts and circumstances relied upon must be consistent with each other and with the hypothesis of defendant's guilt, and inconsistent with his innocence, and every other reasonable hypothesis except that of guilt. State v. Jones, 363 Mo. 998, 255 S.W.2d 801, 804; State v. Murphy, 356 Mo. 110, 201 S.W.2d 280, 282.

However, in passing on the sufficiency of the evidence to support a verdict of guilty, even in cases where the evidence is wholly circumstantial, all the substantial testimony tending to support the verdict must be considered as true, and every legitimate inference therefrom favorable to the verdict must be indulged. State v. Jones, 363 Mo. 998, 255 S.W.2d 801, 804; State v. Murphy, 356 Mo. 110, 201 S.W.2d 280, 282; State v. Harmon, Mo., 243 S.W.2d 326, 331.

Apart from other supporting evidence, the defendant's admissions made in another case that he took the assault gun with him from the crap game and that he 'still had it' at the time he picked up Shirley Riley and when he was hailed by the police in National City would be sufficient. The evidence permits no reasonable inference other than that defendant had possession of the gun at the time it was fired and the assault was committed on Mrs. Primus; it was sufficient to establish defendant's criminal agency and the trial court did not err in so ruling. State v. Harmon, supra; State v. Harris, 324 Mo. 223, 22 S.W.2d 802.

The appellant next contends that the court erred in permitting Shirley Riley to testify that she saw defendant after the alleged attack on Mrs. Primus in possession of the assault gun and in permitting a court reporter, Edward B. Utrip, to testify that the testimony of Taylor, a transcript of which he was identifying, was reported by him in a criminal division of the circuit court in a case in which Taylor was the defendant. The defendant claims that this testimony permitted the jury to infer that Taylor had committed a crime against Shirley Riley for which he was previously tried. He contends that the evidence of which he complains was not properly related to the cause on trial and violates the defendant's right to be tried for the offense for which he was indicted, citing State v. Reese, 364 Mo. 1221, 274 S.W.2d 304; State v. Spinks, 344 Mo. 105, 125 S.W.2d 60; State v. Buxton, 324 Mo. 78, 22 S.W.2d 635; and State v. Martin, 74 Mo. 547.

Proof of separate and distinct crimes is not admissible unless such proof has some legitimate tendency to establish defendant's guilt of the offense for which he is on trial. State v. Dees, Mo., 276 S.W.2d 201, 207. There are well-recognized exceptions to the general rule of exclusion, one of which is that evidence of other crimes is competent to prove the specific crime charged when it tends to establish the identity of the person charged with the commission of the crime on trial. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307; State v. Thompson, Mo., 280 S.W.2d 838, 841-842.

Defendant's connection with the crime, or his identity, was one of the principal issues in the case; that is, whether he was the one who had possession of the gun and used it at the time Mrs. Primus was wounded. The testimony of Shirley Riley that she saw the assault weapon in the possession of the defendant within an hour after the assault, the selected questions and answers from the transcript of defendant's testimony in the other case, and the reluctant testimony of Johnny Day that he saw a similar gun in the defendant's possession before the assault, were all competent as tending to establish the identity of the defendant Taylor as the perpetrator of the assault upon Mrs. Primus. State v. Thompson, supra, State v. Dees, supra.

Another facet of the same problem is the testimony given by Mr. Utrip during his identification of the transcript of Taylor's testimony. In answer to a question by the state, the witness testified that Division No. 10 of the Circuit...