State v. Washington
| Decision Date | 09 November 1964 |
| Docket Number | No. 50588,No. 2,50588,2 |
| Citation | 383 S.W.2d 518 |
| Parties | STATE of Missouri, Respondent, v. Jerry WASHINGTON, Appellant |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., Jefferson City, James W. Steele, Special Asst. Atty. Gen., St. Joseph, for respondent.
John Peters MacCarthy, St. Louis, for appellant.
A jury found the defendant guilty of robbery in the first degree. Section 560.120 RSMo 1959, V.A.M.S. Pursuant to a stipulation of the parties, the court found that the defendant had been previously convicted of second-degree burglary for which he had been imprisoned. Therefore, the defendant's punishment was assessed by the court and he was sentenced to five years in the custody of the Department of Corrections. Sections 556.280 and 560.135. The principal contentions on appeal are that the conviction is not supported by substantial evidence because the testimony of the witnesses for the prosecution was so inconsistent that it was entirely discredited, that the court erred in admitting certain evidence, and that an instruction given on behalf of the state was prejudicially erroneous.
In determining the sufficiency of the evidence to support to conviction, the appellate court must consider as true the evidence favorable to the state together with all favorable inferences that can reasonably be drawn therefrom, and evidence to the contrary must be rejected. State v. Sykes, Mo., 372 S.W.2d 24, 26; State v. Selle, Mo., 367 S.W.2d 522, 527-528.
On Saturday, July 13, 1963, at about 2 a. m., Mozil Lane aged 37, was in the vicinity of Elliott and Gamble Streets in the City of St. Louis, at which time he started walking north on Elliott Street toward his home. When he was about five houses north from the corner of Elliott and Gamble, he saw two youngsters he knew sitting on the steps of a building at 1218 Elliott. They were Sheraldine Perkins, 17 years of age, and her boyfriend Jerry Jackson. Mozil Lane also sat down on the steps with them. After he had been talking with Sheraldine and Jerry for about fifteen minutes, the defendant Jerry Washington, aged 24, and a man known to Lane as Chili came along. The defendant asked Mozil Lane for money and was told by Lane that he didn't have any money. Thereupon, the defendant picked up a large beer bottle and Lane got to his feet. As he did so, the defendant's friend Chili grabbed Lane around the waist from the rear and held both of his arms. While Lane was so held, the defendant struck him with the beer bottle several times on the cheek and about the head, knocking out a tooth and inflicting cuts and bruises. When Lane said he would give them his money, the defendant stopped hitting him. Lane took from his watch pocket four $10 bills which the defendant took from Lane's hands. The defendant searched Lane further and took his keys, pocket knife, and some additional change in excess of $2. The defendant and Chili then walked on down the street.
Lane went into a nearby house and then on to his own home. He stayed in bed Saturday and Sunday and was taken care of by his mother but did not seek medical attention. On Monday he reported the robbery to the police. Lane knew the defendant and gave the defendant's name and description to the police. The defendant was arrested on August 2, 1963, and Lane identified him in the police station and again at the trial as the man who robbed him. The defendant was also identified by Sheraldine Perkins.
The defendant testified in his own behalf and denied that he robbed Mozil Lane. His testimony was that on the night in question he had been gambling at the corner of Elliott and Gamble, that he left the crap game and was walking north on Elliott when Lane tried to stop him and obtain some money from him. This led to an argument and a fight between the two men, but there was no robbery according to the defendant. London English, Jr., also testifying for the defense, stated that he knew the defendant and that he heard an argument between the defendant and another man which developed into a fight. This was on Elliott Street, three or four doors north of Gamble; he thought it was on a Friday night during the previous summer, but he was not sure of the month or the date. He could not say that the man the defendant was fighting with was Mozil Lane.
Sheraldine Perkins in rebuttal testified in substance that the defendant asked for money and when Lane refused to give him any she and her boyfriend got up from the steps and walked over to a car at the curb about ten feet away so that they could discuss a personal problem. She heard Mozil Lane say, 'Take my money; it's in my watch pocket, but don't hurt me.' The three men were fighting and moving around. Mozil Lane was trying to get away. She saw the defendant and his companion going through Lane's pockets. The defendant and his companion then let go of Lane and he fell to the ground. The defendant looked at some papers he had taken, threw them down, and walked away. Sheraldine told Lane to go home and wash his face but did not offer further assistance or call the police.
Direct evidence bearing on the robbery was given by Mozil Lane and Sheraldine Perkins, but the defendant contends that the entire testimony of each of these witnesses must be discredited and disregarded because of inconsistencies. He cites and relies upon Siegel v. Missouri-Kansas-Texas R. Co., 342 Mo. 1130, 119 S.W.2d 376, Steele v. Kansas City Southern Ry. Co., 265 Mo. 97, 175 S.W. 177, and Adelsberger v. Sheehy 332 Mo. 954, 59 S.W.2d 644. These decisions are not applicable because the unexplained conflicts and inconsistencies in the testimony in those cases left the verdict without evidential support upon a vital point or issue. In the present case the testimony claimed to be inconsistent could be entirely eliminated and a submissible case remain. It is not necessary to review all of the alleged inconsistencies. Recitation of a few of them will demonstrate their nature. For instance, the defendant claims that while on the stand Mozil Lane contradicted himself as to the length of time he had known the defendant. It is claimed that Lane stated that he had last seen the defendant three months before their fight and that subsequently he admitted seeing the defendant during the three-month period and seeing him as a usual winner in gambling games. Also, it is said that Mozil Lane testified that he was knocked out by the defendant's first or second blow and that he did not know what happened but that he, nevertheless, testified in detail about the alleged robbery. This claim is based upon Lane's answer to the prosecutor's question as to the number of times he was hit by the defendant. Lane's reply was: His answer to the question was that he did not know exactly how many times he was hit which is understandable even though he were fully conscious. The answer is also susceptible to the interpretation that he was talking about his teeth being knocked out or that he was momentarily dazed while the beating was taking place. At no time did he make the assertion that he was rendered unconscious by the blows and was thereafter insensible to what occurred, as happened in the Siegel case. In fact his testimony was to the contrary. He related how he offered to give up his money and did make $40 available, and how the defendant took from his pockets more money and personal property.
Complaint is made of the testimony of Sheraldine Perkins because she was unsure whether July 13, 1963, fell on a Saturday. The defendant further asserts that Miss Perkins first testified that she heard the defendant twice ask Lane for money and then on cross-examination stated she and her companion had moved away and that she heard nothing until the fight began. The defendant further asserts that there were contradictions between the testimony of Mozil Lane and Sheraldine Perkins.
It is sufficient to say that there was no destructive contradiction in the testimony on any vital point or element of the offense of first-degree robbery. Where the evidence in support of the verdict is substantial, the effect of conflicts or inconsistencies in the testimony of a single witness or between witnesses are questions for the jury's determination. State v. Spraggins, Mo., 368 S.W.2d 407, 410; State v. Nash, Mo., 272 S.W.2d 179, 183.
Further, the defendant asserts that Mozil Lane's credibility was impeached by a showing of prior inconsistent statements which discredited his entire testimony. The alleged inconsistency was that Lane denied that he had been gambling with the defendant on the night of the robbery, whereas a statement in the police report recited that he and several other men including the defendant were gambling on the northeast corner of Elliott and Gamble and that he, Lane, lost several dollars. Again this is not a vital point or element in the case. If there is any inconsistency, it goes only to Lane's credibility and does not necessarily destroy his entire testimony. There was substantial evidence to support the verdict finding the defendant guilty of robbery in the first degree. State v. Pope, Mo., 364 S.W.2d 564, 565-566; State v. Jackson, Mo., 371 S.W.2d 309, 310; State v. Hood, Mo., 313 S.W.2d 661, 663. The court did not err in failing to direct a verdict of acquittal.
Next the defendant contends that the verdict was against the weight of the evidence because of inconsistencies in the testimony of Mozil Lane and Sheraldine Perkins and because the testimony of London English, Jr., supported the inference that no robbery occurred. These and other similar matters complained of are for the determination of the jury in the first instance and finally the trial court in ruling the motion for new trial....
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