State v. White

• Decision Date: 14 April 1969
• Docket Number: No. 2,No. 53118,53118,2
• Citation: 440 S.W.2d 457
• Parties: STATE of Missouri, Respondent, v. William Robert WHITE, Appellant
• Court: Missouri Supreme Court

Page 457

440 S.W.2d 457

STATE of Missouri, Respondent, v. William Robert WHITE, Appellant.

No. 53118.

Supreme Court of Missouri, Division No. 2.

April 14, 1969.

John C. Danforth, Atty. Gen., Gene E. Voigts, Asst. Atty. Gen., Jefferson City, for respondent.

Clarence E. Godfrey, Clayton, for appellant.

BARRETT, Commissioner.

A jury has found William Robert White guilty of an assault with malice with intent to rob and fixed his punishment at 10 years imprisonment. The information appropriately charged the offense in this language, that on October 10, 1966, White 'feloniously, on purpose and of his malice aforethought, did make an assault on Emily Kaune, with a pistol with the intent to rob the said Kroger Company, Incorporated, a corporation, in the care and custody of Emily Kaune.' State v. Washington, Mo., 357 S.W.2d 92; RSMo 1959, § 559.180, V.A.M.S.

In brief, the circumstances were that just before closing time on October 10th, about 8:45, Mrs. Kaune, the cashier-checker, in charge of the glass-enclosed cashier's room, was in the process of checking the day's receipts when she 'noticed a bag being pushed towards me from the glass window, and as I looked up, there was this man standing up there with his hand holding a gun pushed under that glass window, and he told me to put the money in the bag.' She said, 'I just stood there scared and stunned,' she looked at him again and he repeated 'Put the money in the bag' which she proceeded to do, emptying the cash boxes of about $2000.00. Asked if he then touched the paper bag Mrs. Kaune said, 'He must have. He had it folded when he slided it under the glass partition.' Unknown to White, John Simon, a plain clothed security guard employed by Mack's Service Agency to check shoplifters at the Kroger store at Grand and Florissant was also about to check out but observing White, 'I walked up to him, right behind his back, over his shoulder, and I saw the gun and I told him to raise his hand real slow.' Simon held his gun to his back, told him to drop his gun, White asked if he had a gun 'and he reached his hand behind him and grabbed the muzzle of my gun and wrestled it out of my hand.' In the scuffle the gun discharged but Simon, weighing 250 pounds, secured an 'armlock' on White, wrestled him to the floor and held him until the police arrived. These circumstances, needless to say, considering particularly that White pointed a loaded pistol at Mrs. Kaune (State v. Dooley, 121 Mo. 591, 26 S.W. 558), support the charge and the jury's verdict of 'guilty of assault with intent to rob with malice aforethought.' State v. Washington, supra; State v. Bazadier, Mo., 362 S.W.2d 603.

The appellant White in elaborate detail has briefed and argued five assignments of error--all more or less related. In response the state has attempted to reduce the complaints to three rather simple propositions. In large measure the assignments relate to a statement made by Simon and the court's rulings with respect to that statement. After the gun was discharged and after Simon had thrown White to the floor, forcing him to throw the gun down the aisle, and held him with a hammerlock in such force that it threw his shoulder out of place he was in pain and began begging 'me to get up off him.' All this Simon detailed on direct examination. On cross-examination defendant's counsel inquired, 'was the defendant injured in this altercation with you?' Simon responded, 'He said he was hurt and asked me to get up off him. I don't know anything about it, only that I threw him down and he said he was hurting, and he asked me to get up off him. I asked him why did he try to do this, and he said he needed some money--.' Immediately there were objections by the cross-examiner, 'I ask that be stricken from the record,' and 'That's not responsive. It is a violation of Miranda and every other rule. I move for a mistrial.' And the court, as immediately, responded: 'The jury is instructed to disregard the last part of the witness' statement; that is, 'I asked him why did he try to do this and he said he needed some money.' You may proceed.' Then defendant's counsel said, 'Judge, in instructing the jury in that manner, you might as well hit me on the head with a brick mallet. It calls attention to it. It was worse than if nothing was said at all. I am going to ask that the jury be discharged and a mistrial declared.' The court said, 'Your request is denied. Let's proceed.' Upon this phase of the record appellant's counsel has commingled two or more related assignments of error: that the court's instruction to the jury 'was not enough because the jury had been so prejudiced as to render them incapable of giving defendant a fair and impartial trial,' that 'the licensed private watchman was exerting force and injuring defendant in custody,' that the court ruled the evidence inadmissible as 'not responsive and defendant could not have made a voluntary and constitutional answer under the circumstances of force and injury to himself.' In this connection there is also an assignment of error that the state's attorney improperly argued this matter to the jury. And preliminarily there are two assignments directed to the proposition that the court erred in refusing to instruct the jury on the lesser graded offense of assault with intent to rob without malice under RSMo 1959, § 559.190, and these necessarily will be first considered.

The assignments state that assault without malice should have been submitted because the files of 'the court of criminal correction' (the committing magistrate), 'state defendant was held on October 24, 1966, for assault to rob on the back of the warrant and the transcript of the court of criminal correction was improper and void on its face' lacking a seal to the court's jurat. Aside from the frivolity of this point which is set forth in great detail the state contends that when the appellant was arraigned and made no objection to any of the prior proceedings but announced ready and proceeded to trial upon the charge set forth in the information, assault 'feloniously and with malice aforethought,' he thereby waived any defects or irregularities in the preliminary hearing. State v. Hamel, Mo., 420 S.W.2d 264. Perhaps, but the complete answer to these two assignments of error is that, without repeating the testimony and demonstrating, there is no...