State v. Wilwording

• Decision Date: 11 October 1965
• Docket Number: No. 2,No. 51048,51048,2
• Citation: 394 S.W.2d 383
• Parties: STATE of Missouri, Respondent, v. Alan Daniel WILWORDING, alias Daniel Allen Wilwerding, Appellant
• Court: Missouri Supreme Court

Page 383

394 S.W.2d 383

STATE of Missouri, Respondent, v. Alan Daniel WILWORDING, alias Daniel Allen Wilwerding, Appellant.

No. 51048.

Supreme Court of Missouri, Division No. 2.

Oct. 11, 1965.

Norman H. Anderson, Atty. Gen., Jefferson City, Henry S. Stolar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Alan Daniel Wilwording and Daniel Allen Wilwerding, pro se.

William A. Moon, Court Appointed Attorney, Springfield, for appellant.

EAGER, Presiding Judge.

Defendant was charged by information with first degree robbery committed by means of a dangerous and deadly weapon and also with a prior conviction. He was found guilty by a jury and sentenced by the court to be imprisoned for a term of twenty years. Motion for new trial was filed and overruled. Defendant was given leave by this court to file a notice of appeal out of time, and he was permitted by the trial court to procure a transcript in forma pauperis. The case has been briefed here by counsel. Since there is no contention that the evidence was insufficient to sustain a conviction, we shall not make a detailed statement.

Shortly before nine o'clock on the evening of July 13, 1963, the So-Lo Market in Springfield was robbed by two men; one went to a check-out stand, held an automatic pistol on the checker or cashier, announced that it was a holdup, and had the checker put all the bills from the cash register into a paper bag, which he then took. The other man went to the small office where one William James Wilkinson, President and General Manager of So-Lo Markets, Incorporated, was counting the receipts of the day, pointed a pistol at him and had him put the loose currency in a bag. The man who had robbed the checker then came to the office and got Wilkinson, and at gunpoint had him clean out another cash register and then the office safe. No resistance was made in the face of the two pistols. The total money taken was well over $5,000.

The defendant was positively identified at the trial as the robber at the check-out station by William Wilkinson, by the check-out boy, by Guy Wilkinson (manager of the local store) who happened to come into the store just at the time of the robbery, and by two customers who were near the check-out station. Four of these witnesses had also identified defendant from groups of four or five men in the police lineup; three had identified him again in the detectives' room at police headquarters under different lighting. There were certain more or less minor discrepancies in the descriptions of sunglasses worn by the defendant, and perhaps in other particulars. A Springfield barber, who was present at the check-out counter, testified that, in his opinion, the defendant was not the man who help up the check-out boy; he arrived at that conclusion largely on account of the appearance of defendant's hair. The defendant's father, who lived in Kansas City at the time of the robbery, testified that the defendant came to his trailer home for a few minutes at about 11:00 p. m. on the night of July 13, 1963; also, that about a month earlier he had given his son $1,000 to get him started in a business. One Eula Dulin, who was with the father at the time, also corroborated his testimony concerning the brief visit of the son. Ronald Kennedy, then serving a twenty year sentence in the Missouri penitentiary for the same robbery and with admitted prior convictions, was brought to the trial on a writ of habeas corpus testificandum; he testified that the defendant Wilwording had nothing to do with the robbery and he named a supposed person whom he said had participated in it with him. Defendant was arrested on July 20, 1963, practically on the Missouri-Kansas state line, by a Prairie Village, Kansas, patrolman who had a pick-up order for the car in which he was riding; the pick-up order was on a different charge or complaint. When the car was stopped, the men were taken out and the officer was in the process of searching the driver at the patrol car when Wilwording, the passenger, jumped back into his car and drove north on State Line Road at 80-90 miles an hour in heavy traffic, with the officer following in the patrol car. After defendant had struck three other cars, and after the firing of three or four shots by the officer which deflated one or more tires, defendant's car was sufficiently damaged that he was forced to stop. He was then arrested, but only after another brief attempt to flee. Ten twenty dollar bills were found on his person. Brief rebuttal testimony was produced by the State; this tended to reflect discredit upon the testimony of Kennedy, but it is unnecessary to detail it here, as the fact issue in the case was very simple. Any further facts which may be necessary will be developed in the body of the opinion.

The first point made in defendant's brief is that the court erred in permitting the State, over objection, to produce evidence of a prior conviction 'after the submission of the case to the jury.' That evidence was presented at a time when the jury had recessed for lunch; two witnesses for the State, customers of the store, had testified identifying the defendant. Four witnesses for the State on the merits followed thereafter. The evidence thus complained of consisted of: a certified transcript of a judgment and sentence of the Circuit Court of Jackson County, entered after a plea of guilty to the offense of stealing from the person, with a sentence of two years at the Algoa Reformatory; a transcript of the record of the Department of Corrections showing defendant's incarceration and discharge on three-fourths time; and the testimony of a Springfield detective that the defendant had stated to him that he had served thirteen months in the Missouri penitentiary, ending June 1, 1963 (which date conformed to the discharge date of record). Counsel for defendant objected at the time for the reasons that 'the trial has already started and the jury has been sworn,' that opening statements had been made, and a 'portion' of the State's witnesses had testified. Counsel further stated: 'I didn't know this was going to occur. We haven't had the opportunity to have the advantage of cross examination of the state's witness before this defendant. That makes a lot of difference in the way you cross examine witnesses as to whether or not the Judge or the jury is going to pass the sentence.' A formal objection to the record of the Department of Corrections has not been preserved in defendant's brief and is waived. At the conclusion of this hearing the court found that the defendant had previously been convicted of a previous crime and that he was sentenced and confined therefor.

Our Second Offense Statute, Section 556.280 RSMo 1959 (Laws 1959), V.A.M.S., provides that the hearing shall be held by the judge 'out of the hearing of the jury prior to the submission of the case to the jury * * *.' Counsel here argues that the case was submitted when the jury was sworn. The authorities cited are wholly inapplicable. They consist of 16 C.J., Criminal Law, Secs. 390-391 (1st Ed.), and the Georgia case of Fortson v. State, 13 Ga.App. 681, 79 S.E. 746. Both are concerned only with the time or stage of a prosecution at which a nolle prosequi may be entered without the consent of the accused. The Corpus Juris text indicates that after a jury has been impaneled and sworn, the accused's jeopardy has begun and that, generally, such action may not then be taken. The Georgia case, construing a Georgia statute providing that a nolle prosequi may be entered 'at any time before the case has been submitted to the jury,' holds that 'within the meaning of this section' a submission does not occur until the jury has been impaneled and sworn. Such statements are in accord with the general rule on jeopardy; they have no relation whatever to the general meaning of a 'submission to the jury' for the purpose of a finding on guilt or innocence or the fixing of punishment, or both. The 'submission' from a standpoint of jeopardy means: 'The danger of conviction and punishment which the defendant in a criminal action incurs when a valid indictment has been found, and a petit jury has been impaneled and sworn to try the case and give a verdict in a court of competent jurisdiction.' (Citing cases.) Black's Law Dictionary, 4th Ed. The 'submission' of a case under Sec. 556.280 means, as we now hold, that time when a case is turned over to the jury for its decision under the instructions of the court. See, by way of alalogy, State ex rel. News Corp. v. Smith, Banc, 353 Mo. 845, 184 S.W.2d 598. It is then, and only then, that the issues are submitted and the jury is told that it shall decide either guilt or innocence and punishment, or that it shall merely decide guilt or innocence. The real purpose and intent of our present Second Offender Act, as contrasted with the previous Habitual Criminal Act, is to keep the matter of prior convictions away from the jury by having the judge assess the penalty if, in fact, a prior conviction has been found. State v. Morton, Mo., 338 S.W.2d 858. All that is necessary is a hearing and a finding before the jury actually receives the instructions and thus receives the case for its final decision. In our practice such hearings have been held at various times prior to the giving of the instructions. State v. Griffin, Mo., 339 S.W.2d 803, certiorari denied 366 U.S. 938, 81 S.Ct. 1666, 6 L.Ed.2d 849; State v. Donnell, Mo., 351 S.W.2d 775, certiorari denied 374 U.S. 811, 83 S.Ct. 1703, 10 L.Ed.2d 1035.

Counsel argues that he was entitled to know in advance of the voir dire and any testimony whether the State was going to proceed on the information charging a prior offense; he says that this might have affected defendant's desire to plead guilty, as well as the voir dire examination and the cross-examination of witnesses. There are two complete answers to this contention. (1) The charge was plainly contained in the original...