State v. Thompson

• Decision Date: 11 February 1957
• Docket Number: No. 45506,No. 2,45506,2
• Citation: 299 S.W.2d 468
• Parties: STATE of Missouri, Respondent, v. James E. THOMPSON, Appellant
• Court: Missouri Supreme Court

Page 468

299 S.W.2d 468

STATE of Missouri, Respondent, v. James E. THOMPSON, Appellant.

No. 45506.

Supreme Court of Missouri, Division No. 2.

Feb. 11, 1957.

Motion for Rehearing and to Transfer to Court en Banc Denied

March 11, 1957.

No attorney for appellant.

John M. Dalton, Atty. Gen., George E. Schaaf, Asst. Atty. Gen., for respondent.

EAGER, Presiding Judge.

Defendant was charged by amended information with first degree robbery by means of a dangerous and deadly weapon, and also with three prior convictions. By agreement the case was tried as one for first degree robbery only, thus eliminating any request for the death penalty. Defendant was found guilty of first degree robbery, not guilty of the prior convictions, and sentenced to 15 years' confinement. He has filed no brief here, so we have examined the transcript for any error which has been duly assigned in his motion for new trial, as well as the formal parts of the record. On a prior appeal, shown at 280 S.W.2d 838, a prior judgment and sentence of 20 years for the same offense was reversed and the case remanded by this court because of errors in the exclusion of evidence.

The evidence at the second trial, in so far as it concerned the facts of the robbery and the circumstances of defendant's arrest, was substantially identical with the facts stated in the previous opinion. Such additions or variations as may be material will be noted in the course of this opinion. The defense, submitted by the testimony of defendant's wife and another, was that of an alibi; more specifically these witnesses testified that defendant and his wife Norma were in the Benton Bar on the evening in question from about 7:30 or 8:00 P.M. until 11:55 P.M., which, if true would have precluded defendant's presence at the scene of the present robbery (of the Gasen Drug Store) at approximately 11:00 P.M. Defendant testified similarly, but limited his presence at this bar to a shorter period, still including, however, the time of this robbery. At the present trial there was ample evidence to support the identification of the defendant as one of the armed robbers, one of whom carried an automatic pistol and the other a large revolver. There was evidence that on leaving the store the two ran to a 1949 black Ford waiting 20 feet or more from the entrance; also, that a woman who had been waiting in the car kept 'ducking down in it,' and that all drove away very promptly in that car.

Several assignments of the motion for new trial are insufficient under our Rule 27.20, 42 V.A.M.S. and Section 547.030, RSMo 1949, V.A.M.S. (to which all statutory citations herein will refer). These are: (a) that the verdict is against the weight of the credible evidence; (b) that the court erred in permitting 'police officers' (six of whom testified) to testify to hearsay; and (c) that the circuit attorney was permitted to make improper and prejudicial remarks concerning another and different crime. On the insufficiency of these assignments, see: as to (a) State v. Burks, Mo., 257 S.W.2d 919, 920; State v. Kennon, Mo., 123 S.W.2d 46; State v. Miller, Mo., 202 S.W.2d 887; State v. McHarness, Mo., 255 S.W.2d 826, 830; as to (b) State v. Thorpe, 359 Mo. 796, 223 S.W.2d 479; State v. Ross, Mo., 300 S.W. 785; State v. Nienaber, 347 Mo. 615, 148 S.W.2d 1024; as to (c) State v. Spencer, 355 Mo. 65, 195 S.W.2d 99; State v. Janes, 318 Mo. 525, 1 S.W.2d 137; State v. Vesper, 316 Mo. 115, 289 S.W. 862.

It is contended that the court erred in overruling defendant's motion to dismiss filed in advance of the trial. This motion is somewhat confusing, but, as best we can understand it, its substance was: that the same three prior convictions charged in the present information had been used previously against defendant at other trials, that he had been acquitted thereon, and that the use of these prior convictions here constituted double jeopardy; also, that Sec. 556.280 (the 'Habitual Criminal' statute) is unconstitutional as in violation of due process and as creating or inflicting double jeopardy by permitting repeated prosecutions for the same crime. A complete answer to the first contention is that no evidence was offered in support of the motion and that its allegations are not self-proving. The only record before this court is the prior conviction of defendant in this same case; that judgment and sentence were reversed and the cause remanded. The judgment does not remain, therefore, as an adjudication of anything; and, in fact, as shown at 280 S.W.2d loc. cit. 839, the jury there made no findings at all on the question of prior convictions. We do not hold, and need not hold that the use of the same prior convictions at two or more successive trials would constitute double jeopardy or violate due process. The charge of prior convictions under Sec. 556.280 is not made as an independent charge of the commission of those offenses, but merely as affecting the punishment. The legislature deemed such a consideration appropriate upon the commission of a subsequent offense. State v. Collins, 266 Mo. 93, 180 S.W. 866, 867. There seems to be a rather clear inference in that opinion that the use of a prior conviction more than once is permissible. The constitutionality of this statute has been affirmed and reaffirmed and we need not discuss that question again. State v. Hagerman, 361 Mo. 994, 238 S.W.2d 327; State v. Collins, supra. The motion was properly overruled.

The next assignment is that the court, before trial, concluded that defendant was guilty, and prejudicially refused to permit defendant to be tried by a 'different court.' Defendant had already had one 'change of venue' from Division 10, which, in fact, could only have been a disqualification of the judge under Rule 30.12; he was entitled only to one such disqualification. Moreover, he took no formal steps to disqualify the trial judge, as required by that rule. Defendant's counsel merely suggested that this was a 'Division 11 case,' since it had gone there on the original 'change of venue.' It appears that the case had been returned from Division 11 to Division 1 and thereafter reassigned; the rules of that court are not in the transcript; the trial court ruled that the case was properly before it and there is nothing here to establish error in that ruling. See also Sec. 478.417, relating to the Eighth Judicial Circuit.

The complaint regarding remarks allegedly made during the voir dire examination may not be considered, because no part of that examination is contained in the transcript.

The next assignment complains of error in admitting the 'firearms' into evidence, because they were not found or proved to have been in the possession of defendant or proved to have been connected with the crime. A very similar contention was denied in State v. Johnson, Mo., 286 S.W.2d 787, where the matter was discussed at some length. In the present case the two loaded weapons were found by police in the bottom of the meat cooler in the Tom Boy Grocery; defendant and another had just been found by police behind the meat counter in that store about 3:00 A.M. on the morning immediately after the robbery of the drugstore. The revolver was definitely identified at the trial as the weapon carried by defendant in the robbery, and the automatic as the weapon carried by defendant's companion. The peculiar circumstances surrounding the finding of these guns, their identification as aforesaid, and the definite identification of defendant as one of the robbers sufficiently connected up these exhibits and made them admissible. Certainly a reasonable inference might have been drawn, under these circumstances, that defendant and his companion had placed the guns in the meat cooler, a somewhat unusual place for the storage of loaded firearms. See also: State v. Mangercino, 325 Mo. 794, 30 S.W.2d 763; State v. Ball, 321 Mo. 1171, 14 S.W.2d 638.

Defendant next insists that the court erred in permitting 'evidence of a crime separate and distinct from the offense upon which defendant was being tried.' Without the benefit of a brief from defendant, we can only assume that he refers to the evidence showing the circumstances of the finding of defendant and another inside a grocery store at approximately 3:00 A.M., and shortly after the robbery here charged. This complaint was ruled against defendant on the prior appeal. Without repetition we refer to that opinion, 280 S.W.2d at loc. cit. 841, 842. What was said there applies with equal effect under the present evidence. As indicated in State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22, 28, this assignment is clearly insufficient under Rule 27.20.

Defendant assigns error in permitting Officer Crowe to testify to immaterial matters and hearsay, with reference to 'arresting other persons not on trial with defendant.' We assume this can only refer to the arrest of defendant's companion Lindner, or of defendant's wife. The witness referred to testified that he and other officers found a '49 black Ford parked near the Tom Boy Grocery and that defendant's wife, Norma Thompson, was in it. He did not even refer to Lindner. The testimony of this witness was not hearsay and it was not immaterial. The substance of the...