State v. Tolias

• Decision Date: 13 July 1959
• Docket Number: No. 2,No. 47099,47099,2
• Parties: STATE of Missouri, Respondent, v. Gus John TOLIAS, Appellant
• Court: Missouri Supreme Court

Page 329

326 S.W.2d 329

STATE of Missouri, Respondent, v. Gus John TOLIAS, Appellant.

No. 47099.

Supreme Court of Missouri, Division No. 2.

July 13, 1959.

Mark M. Hennelly, St. Louis, for appellant.

John M. Dalton, Atty. Gen., W. Don Kennedy, Asst. Atty. Gen., for respondent.

STORCKMAN, Judge.

The defendant, Gus John Tolias, was convicted in the Circuit Court of St. Louis of an assault with intent to kill without malice aforethought, Sec. 559.190 RSMo 1949, V.A.M.S., and his punishment was assessed by the jury at imprisonment in the city jail for a period of nine months. His motion for a new trial was overruled and he was sentenced in accordance with the verdict. The defendant appealed but filed no brief. The case was submitted on the brief of the state alone.

In addition to the evidence of the state, there is testimony of the defendant who testified in his own behalf. The prosecution arose out of an altercation on Madison Street near its intersection with Eliot in St. Louis at about 11:00 p. m. on November 7, 1956. The evidence favorable to the verdict tended to show that Harry Madison and three other Negro youths had spent the evening at a community center, boxing and indulging in other athletic activities. Madison was fourteen years old and his companions, Joe Deering, Sammie Lee and Woodrow Jones, were about the same age or somewhat older. On the way to their homes, after the community center closed, they passed the home of defendant in the 2500 block of Mullanphy.

The defendant, a young white man twenty-two years of age at the time of this occurrence worked with his mother, father and two brothers in a bakery business and he had lived with his family at 2513 Mullanphy all of his life. His father owned a 1954 Ford panel truck in which rolls, doughnuts and other bakery goods were usually kept. The truck was parked in the street near the defendant's home and when he arrived, the defendant saw two of the Negro boys along side of the truck and it appeared to him that they were trying to break in. These two were soon joined by their other two companions and a verbal exchange occurred between them and the defendant. Accounts as to how this began vary. The boys contend the defendant asked them what they were doing, and the defendant testified that the boys accosted him by asking him what he was looking at. In any event, it appears that the defendant saw on the street a friend, Donald Krone, who lived near by, and went to join him. The boys then left going west on Mullanphy.

After the boys left, the defendant and Krone got into the defendant's 1952 Hudson automobile and went to a neighborhood tavern for white customers where they were joined by five other young men, all of whom got into the defendant's car. Before joining the group, one of the men got a shotgun from the trunk of his car and brought it into the defendant's automobile. Police officers testified that the defendant, after his arrest, told them that he drove to the home of another one who went into his house briefly and that the defendant presumed that he went in to get a gun, although the defendant did not see the gun.

The defendant then drove around with his six companions until they located the four Negro youths in a Negro neighborhood, not far distant. In the meantime, the boys had left their gymnasium equipment near the steps of one of their homes and at some time, not altogether clear, some of them had armed themselves with bricks. The defendant drove his car around the block and as it was passing the Negro boys the second time, one or more bricks were thrown at the automobile. Shots, described by sound as from a pistol and a shotgun, were fired from the automobile. The defendant conceded that he heard the blast from the shotgun fired from his automobile, but he did not know who fired it. He denied that he heard and other shots fired from his car.

The prosecuting witness, Harry Madison, was struck by a .32 caliber bullet which severed the spinal cord between the eighth and ninth dorsal vertebrae, paralyzing him from that point down. One of the other boys was struck in the head by a pellet from a shotgun and another of the boys was shot in the leg. The defendant and two of his companions were jointly indicted on a charge of assault with intent to kill with malice aforethought.

Where no brief is filed by the appellant in a felony conviction, the court will review the assignments of error properly preserved in the motion for new trial and the formal parts of the record. State v. Swiney, Mo., 296 S.W.2d 112. We find no error with respect to the matters not required to be preserved in a motion for new trial. The indictment is sufficient and the verdict is in proper form and responsive to the issues. The defendant was granted allocution and the judgment and sentence are in accordance with the verdict.

In his motion for new trial the defendant charges that the court erred in not permitting him to show that Sammie Lee, a state's witness, had been convicted in a juvenile proceeding of stealing 'in matters growing out of this case' and at the time of trial was confined in the juvenile institution in Boonville. The trial court sustained the state's objection when defendant's counsel sought to refer to the matter in his opening statement and also when he sought to cross-examine the witness with regard to it. The defendant says that these matters went to the interest and credibility of the witness.

The time of the alleged conviction was not shown, but that is not important because the witness was of juvenile age and the statutes during the time in question provided that the disposition of a case against a delinquent child may not be shown 'for any purpose whatever.' Section 211.010, subd. 4 RSMo 1949, V.A.M.S., and Sec. 211.271, subd. 3, 1957 Cum. Supp., V.A.M.S. Under our statutes the disposition of a case in juvenile court is not deemed a conviction of a crime by the child charged and is not admissible to affect his credibility as a witness. State v. Coffman, 360 Mo. 782, 230 S.W.2d 761, 764; State ex rel. Shartel v. Trimble, 333 Mo. 888, 63 S.W.2d 37-38-39. The court did not err in refusing to allow the reference or the cross-examination.

Next the defendant contends the court erred in not permitting defense counsel in his opening statement to refer to the fact that there had been previous thefts from the defendant and his family in and about their home as this evidence would have explained his state of mind and his conduct on the evening in question and in overruling his offer of proof in this regard. The offer did not undertake to connect Harry Madison or his companions with the prior thefts. Such proof would have been an excursion into the proof of other offenses and its relevancy to any issue in this case is not apparent. The claim of error must be denied.

The defendant assigns error in the overruling of his motion for judgment of acquittal at the close of the state's case and also at the close of all the evidence in the case. As previously stated, after the original verbal altercation, the defendant collected reinforcements because, as he stated it, he and his friend Krone were not able to handle the boys alone. The defendant with his companions then went in search of the boys and when they were found, shots were fired from the defendant's automobile which the jury could find inflicted injuries upon Harry Madison. It is not necessary in these circumstances that the evidence be sufficient for the jury to find that the defendant fired the shot which struck the victim. The evidence is sufficient to show the commission of the crime of which the defendant was convicted and the defendant's criminal agency. 'If two or more persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal, if the other (or others) commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose or as a natural or probable consequence thereof.' State v. Chernick, Mo., 278 S.W.2d 741, 746. See also State v. Butler, Mo., 310 S.W.2d 952, 957, and State v. Massey, 358 Mo. 1108, 219 S.W.2d 326, 331. The issue was for the jury and the trial court did not err in failing to direct an acquittal.

The prosecuting witness Harry Madison was brought into the court room on a cot or bed and testified in that position. There was evidence that the bullet which struck him on the night in question severed the spinal column in the lumbar region and that his body was paralyzed from that point down. The defendant contends that the trial court erred in failing to declare a mistrial which he sought on the ground 'that the State had deliberately staged the method and manner in which the prosecuting witness was wheeled into the court room'; he asserts this was done to bias, prejudice and inflame the minds of the jurors against the defendant.

All of the evidence was to the effect that the bullet had severed the spinal cord and that Madison was partially paralyzed. The defendant sought to show that certain symbols or letters in the hospital record indicated that Madison had been out of bed on several occasions. The evidence in this regard was not conclusive and doctors testified that if the witness was out of bed at any time, he could only have been in a wheel chair. Whether the witness was brought into the court room on a bed or in a wheel chair, the effect on the jury would probably have been about the same. The charge of error is not supported by the record and the court did not err in refusing to declare a mistrial.

The defendant next charges that the court erred in not instructing the jury on the defense of accident and in not explaining the defense of accident, particularly in the light of the fact that the court had referred to accidental shooting in Instruction no. 2. The reference to accident in Instruction 2 was in defining the words,...