State v. Williams
| Decision Date | 09 March 1964 |
| Docket Number | No. 49964,No. 2,49964,2 |
| Citation | 376 S.W.2d 133 |
| Parties | STATE of Missouri, Respondent, v. John WILLIAMS, Appellant |
| Court | Missouri Supreme Court |
Jack L. Koehr, St. Louis, for appellant.
Thomas F. Eagleton, Atty. Gen., Jefferson City, Carl R. Gaertner, Special Asst. Atty. Gen., St. Louis, for respondent.
This is an appeal from a conviction of robbery in the first degree by means of a dangerous and deadly weapon. The court found that the defendant had been convicted of a prior felony and assessed punishment at imprisonment for ten years. The defendant was sentenced accordingly after his motion for new trial was overruled.
The appeal is before us on the transcript of the record and the brief of the state. Since no brief has been filed by the defendant, our appellate review extends to all assignments of error properly preserved in the motion for new trial and the essential portions of the record. S.Ct. Rules 27.20 and 28.02, V.A.M.R.; State v. Todd, Mo., 372 S.W.2d 133, 134.
The first assignment of error is that the trial court erred in overruling the defendant's motion for judgment of acquittal offered at the close of the entire case. The evidence favorable to the verdict tends to prove that on July 12, 1962, Frieda Zide was in charge of a grocery store operated by her and her husband, Sam Zide, at Shreve and Lee in St. Louis. At about ten minutes after noon, two negro men, who were later identified as the defendant and one Solomon Collor, entered the store. Collor produced a gun and said this is a stickup. The defendant went to the cash register and started banging on it with his hand and demanded, 'Open this damn register.' Neither man wore a mask nor had his face covered in any way. The defendant took over $500 from the cash register and Collor placed the gun against the back of a bakery delivery man who was in the store and took his money also. The two men were in the store for approximately five minutes. Mrs. Zide called the police immediately after they left, and the delivery man observed the direction in which they went.
On the same day, at about the same time, Mary Ann Berry, who lived nearby, observed an orange and white Pontiac automobile parked in the alley behind her house in such a position that it blocked traffic. As she watched the car, she heard running footsteps in the alley and saw two men go past the back of her house, get in the car and drive away. She saw one of the men well enough that she was able to identify him as Solomon Collor three days later in a lineup in a police station. Two days after the robbery, police officers arrested the defendant together with Solomon Collor while they were riding in a white and red Pontiac automobile belonging to the defendant. The latter color was variously described by witnesses as an orange, red or rust color.
Mrs. Zide picked the defendant and Collor out of a police lineup which included two or three other men of similar age, build and appearance. She identified them as the men who had robbed the grocery store and again identified the defendant as one of the robbers at the trial. Solomon Collor was jointly indicted with the defendant but was tried separately. The evidence above related was substantial and clearly sufficient to justify the jury in finding beyond a reasonable doubt that the defendant was an active participant in the robbery. State v. House, Mo., 349 S.W.2d 928, 929; State v. Martin, Mo., 347 S.W.2d 680, 681; State v. Thompson, Mo., 299 S.W.2d 468, 474; State v. Hagerman, Mo., 244 S.W.2d 49, 53.
The next assignment of error is that the court erred in giving instruction No. 5 defining reasonable doubt. The instruction is in the form approved numerous times by this court in criminal cases. Nevertheless, the defendant contends that the instruction 'interferes with the established legal principle that the factual existence of a reasonable doubt within the evidentiary proof of guilt, by and of itself, is sufficient basis for an acquittal, and * * * creates the inference that something more than a reasonable doubt is necessary for an acquittal.' The defendant further asserts that the instruction fails to define the technical legal meaning of 'reasonable doubt'. The portion of the instruction complained of is identical with that given and approved in State v. Turner, Mo., 320 S.W.2d 579, 584. We have again considered the instruction in view of the criticism here made and find that it is not erroneous. State v. Velanti, Mo., 331 S.W.2d 542, 545; State v. Berry, 361 Mo. 904, 237 S.W.2d 91, 93; State v. Graves, 352 Mo. 1102, 182 S.W.2d 46, 54.
The third and fourth assignments of error (which relate to the same subject and will be treated together) are that the trial court erred in admitting evidence of prior convictions and prison records of one John Williams and in finding that the defendant was guilty of two prior convictions because there was no proof that the defendant was the same John Williams named in the records. Evidence was heard and the finding was made in accordance with Sec. 556.280, RSMo 1959, V.A.M.S., as amended Laws 1959, S. B. No. 117, Sec. 1. Identity of names is prima facie sufficient to establish a defendant's identity for the purpose of showing a prior conviction within the Habitual Criminal Act. State v. Romprey, Mo., 339 S.W.2d 746, 753; State v. Reed, Mo., 298 S.W.2d 426, 428; State v. Hands, Mo., 260 S.W.2d 14, 18. The specification of error is denied.
The next ground of error alleged is that the court committed prejudicial error in not permitting defendant's counsel to argue to the jury that the state had not produced all the evidence in view of the fact that police officers had testified that the defendant had made a statement to them. This information was elicited by the defendant during the cross-examination of two of the state's witnesses. When the first police officer was asked by defendant's counsel if the...
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