State v. Turner

• Decision Date: 09 February 1959
• Docket Number: No. 2,No. 46808,46808,2
• Parties: STATE of Missouri, Respondent, v. James Alfred TURNER, Appellant
• Court: Missouri Supreme Court

Page 579

320 S.W.2d 579

STATE of Missouri, Respondent, v. James Alfred TURNER, Appellant.

No. 46808.

Supreme Court of Missouri, Division No. 2.

Feb. 9, 1959.

Ben J. Weinberger, St. Louis, for appellant.

John M. Dalton, Atty. Gen., J. Richard Roberts, Sp. Asst. Atty. Gen., for respondent.

EAGER, Judge.

Defendant was convicted by a jury of Robbery in the First Degree By Means of a Dangerous and Deadly Weapon (Section 560.135 RSMo 1949, V.A.M.S.), and was sentenced to a term of twelve years in the penitentiary. The jury found him not guilty of any prior felony, although sentences, confinements, and discharges for two prior felonies were admitted in open court by his counsel. This is the privilege of a jury under our existing law (Section 556.280 RSMo 1649, V.A.M.S.), anomalous though it may seem. After pursuing an unsuccessful motion for a new trial, defendant appealed. The case is briefed here only by the respondent, so we shall consider the matters sufficiently raised in defendant's motion for a new trial, and those matters of record which we would consider in any event.

The State's evidence fairly showed the facts which we shall now relate. Arthur Perry, accompanied by one Helen Floyd, drove to the vicinity of 19th and Franklin Streets in the City of St. Louis between 12:15 and 12:30 a. m. on June 23, 1957; he parked on Franklin, near the corner, headed west. The car was a two-door 1957 Chevrolet. The purpose of the stop was to permit Helen Floyd to buy a 'barbecued snout' from a stand near the intersection. The car was parked very near a street light, and its front windows were down. After Helen Floyd left the car, with Perry sitting under its wheel, a man walked up to the door on the opposite side, took something out from under his shirt and 'pressed himself' up against the door; as he did so, he bent over somewhat, and pointed a blue steel pistol at Perry, saying, 'Give me your money.' Perry protested that he had only two or three dollars, but the command was repeated; thereupon, according to Perry's comment (unobjected to), he 'knew that man meant business, so I said, 'Okay." Perry then gave the man his billfold, containing $5, asking for his 'pocketbook back.' The man also looked in the glove compartment, and then told Perry twice to 'pull off.' As Perry began to comply, Helen Floyd was heading back to the car, and she heard the second such direction; she walked up to the man and said: 'Well, what did you tell him to drive off for?' The man turned quickly, looking 'startled,' threw the billfold into the street, and started to run. Helen followed, running as best she could, and 'yelling and hollering,' until the man entered an alley which ran between Franklin and the next street north. The robbery occurred at approximately 12:30 a. m. Perry, Helen, one Joe Cosby and perhaps others, then congregated on the intersection and the police were called.

Cosby, who had been leaning on the railing of a second-floor porch at the entrance of the alley, testified that he saw the man run almost directly beneath the porch; he had been attracted by the commotion, and first saw the man when he was 45-50 yards away. He further testified: that there was a street light directly across from his porch, at a height almost even with it, and that he recognized the running man as one whom he had seen many times around the neighborhood; that this man always wore a baseball cap, and 'most of the time he wore that little shirt'; also, that he knew where the man lived. These witnesses testified that the man in question was wearing his shirt outside his trousers, and a dark baseball cap, probably dark blue. Perry and Helen testified that his shirt was dirty. Cosby pointed out to the police the abode of the man whom he had seen running. Some or all of these parties were taken to the police station to make a report; very shortly, however, the police went to the room or apartment where defendant lived; they found him there with three other persons and wearing only trousers. On a chair were a dirty white shirt and a blue baseball cap; he was told by an officer to put these on, and he did. Perry then identified him as the robber. Later Helen Floyd and Cosby identified him as such at the police station, and at the trial all three positively identified defendant as the robber. The evidence fairly showed that Perry and Helen each had an opportunity to look at the man's face rather closely. Perry testified that the robber was 'brown skinned' and of medium height; Helen testified that he had a moustache.

Defendant's counsel conducted extended cross-examinations of the State's three principal witnesses. He was permitted to show, at length, the domestic affairs and relationships of Perry and Helen, respectively. The essence of this evidence was: that Perry, although married and having grown children, had been going with Helen as his 'girl friend' for several years; that she had been married twice and divorced twice, having had children by each husband, and that she was pregnant by Perry at the time of the robbery; that Perry's child was born to her, the date being shown, and that Perry was contributing to its support. There was also much cross-examination concerning Perry's earnings, his disposition of the money, and of relief payments to Helen. All this was permitted on counsel's theory of attacking the credibility of the witnesses.

Defendant did not testify. Six witnesses testified for him: that he spent the day immediately prior to the robbery and that entire evening helping his sister, Evelyn Tanner, and her husband move; that various persons were engaged in that endeavor and that several of them (specifically including the defendant) concluded the enterprise by sitting in the new abode from about midnight to approximately 1:15 a. m. (June 23, 1957), talking, watching television, drinking beer and eating 'snacks,' until the host finally delivered them to their homes or to other desired locations. According to this testimony, the defendant and a woman whose name was Idabelle Maupins were dropped out at a sort of confectionery and liquor store several blocks from his abode. This, as nearly as we can tell, was said to have been at approximately 1:15 a. m.; from thence he and Idabelle walked to his place, and, as he was starting to 'wash up,' a few minutes later, the police arrived. It is obvious that if the foregoing evidence had been believed by the jury, defendant could not have been convicted. There was also evidence that the police, although requested to do so, did not interview defendant's sister and brother-in-law.

The first assignment in defendant's motion for new trial concerns the argument of the Assistant Circuit Attorney. In the portion complained of counsel said, in substance, that crime was prevalent in St. Louis, that robbery was a heinous form of crime, that the jury should acquit the innocent and convict the guilty, that no one likes to send a man to the penitentiary, but that such a duty sometimes becomes necessary; also, that a conviction would be an example to others and would also show such persons that they could not 'ridicule and badger' the State's witnesses. These statements were made in the State's final argument. Complaint is also made that counsel referred to the previous convictions of defendant as being 'the same' as the present crime, thus allegedly misleading the jury. At least two objections were sustained to parts of this argument and counsel then asked no further relief. As to the 'ridiculing and badgering' of witnesses the court ruled that such was a legitimate argument; we agree that it constituted merely a fair, if partisan, interpretation of counsel's cross-examinations and of the defense argument. In that agrument defendant's counsel referred to Perry nine times as 'lover boy,' and to Helen Floyd several times as a 'slick chick'; also, to Helen as a 'woman with the big belly * * * running,' and as 'child-aid Helen Floyd * * *.' If counsel persist in baring the inner lives and souls of witnesses upon cross-examination upon a collateral matter and in order to attack their credibility (though legally permissible), and thereafter they conduct such an argument as is here shown, they may expect some degree of retribution. The retort here was surprisingly mild, and well within the bounds of legitimate argument.

It has been held many times that a prosecutor may legitimately argue the necessity of law enforcement as a crime deterrent and that the 'responsibility for the suppression of crime * * * rests upon trial juries.' State v. Laster, Banc, 365 Mo. 1076, 293 S.W.2d 300, 306, certiorari denied Laster v. State, 352 U.S. 936, 77 S.Ct. 237, 1 L.Ed.2d 167, and cases cited. Here counsel fairly related his request for a conviction to a finding of guilt, saying, 'You are selected * * * to acquit the innocent and to convict the guilty.' Included in this assignment is a claim of error in permitting the Assistant Circuit Attorney to state that the crimes for which defendant had previously been convicted were 'the same' as that on trial; this is without merit. The records of the prior offenses were stipulated, the precise charges having been stated in open court. The jury could not have been mislead. Moreover, when the State's attorney said, '* * * later the same thing has happened,' and counsel objected, volubly explaining his position before the jury, the court stated that perhaps the statement of counsel was 'a little too misleading'; the State's counsel then rephrased that entire statement without further objection. We find no error in any rulings upon the argument.

Several assignments in the motion attack the conduct of the trial judge; we shall consider these collectively. Therein it is alleged: that he demonstrated bias and prejudice against defendant and his counsel, that he inflamed the jury against the defendant by reprimanding counsel for defendant, by threatening him with contempt in a loud...