author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Michael Henry JAEGER, Appellant.
    No. 51010.
    Supreme Court of Missouri, Division No. 2.
    Oct. 11, 1965.

      Norman H. Anderson, Atty. Gen., Brick P. Storts, III, Asst. Atty. Gen., Jefferson City, for respondent.
    Thomas W. Wehrle, Clayton, for appellant.
   BARRETT, Commissioner.

Robert W. Stephens, Daniel E. Grind-staff and Michael H. (“Big Mike”) Jaeger, all with prior felony records, were jointly charged with robbery with a dangerous weapon. After a severance and upon an information in lieu of an indictment, a jury found the appellant Jaeger guilty of the principal offense and the court, after a stipulation by the parties as to the facts and a finding of two prior felony convictions, sentenced the appellant to imprisonment for a term of years, just how many years being one of the questions involved upon the appeal. As to the substantive crime the information appropriately charged that Stephens, Grindstaff and Jaeger “fe-loniously and wilfully and by means of a dangerous and deadly weapon, to-wit: a pistol, did rob, steal, take and carry away, $50.00 lawful currency of the United States, one ladies Autumn-haze mink coat, one ladies dinner ring, platinum mounting and various other items of women’s jewelry, all of the total value of $2,700.00, the property of Grace Piccione, by then and there putting the said Grace Piccione in fear * * * ” RSMo 1959, §§ 560.120, 560.135, V.A.M.S.”, State v. Foster, Mo., 249 S.W.2d 371.

While Stephens, Grindstaff and Jaeger were jointly charged, at least four people had some active part in the actual robbery of Mrs. Piccione and at least two other people had some knowledge of the events leading up to the conspiracy to rob and afterwards were told some of the facts by one or more of the robbers. The appellant Jaeger, age 35, was living in an apartment on McPherson with Alan Braun, age 18, and Alan’s girl friend, “a girl named Bobby,” and their immediate concern, since “we was something like partners,” was money with which to pay the next month’s rent. Thomas Allen Jones, age 25, admittedly guilty of “approximately 9 or 10” burglaries, “fingered” the Piccione robbery and was the fourth participant although not jointly charged with the three other robbers. Jones, Braun and Braun’s girl friend Bobby, age 20, all testified for the state and the consequence is that aside from the testimony of the police, Mrs. Piccione and her -housekeeper, the jury and the court had the unusual advantage of the full details of a robbery from its planning to its execution and exposure and finally the arrest of all participants.

In brief the circumstances were that in the summer, prior to October 2, 1963, “a fellow by the name of Tommie George” pointed out Mrs. Piccione in one of her theatres (she owned the Apollo and the Varsity on Delmar) to Jones and told him that she carried large sums of money home, usually “had about $30,000 in her house,” that she was a widow and lived alone with a housekeeper at 6915 Delmar. About August first Jones, to make certain of the location of the residence, waited until Mrs. Piccione closed one of Rer theatres and followed her pink Continental Lincoln automobile to her home. On October 1, 1963, between 6:30 and 7:30 Jones, Alan Braun and Bobby, Stephens, Grindstaff and Jaeger assembled at their usual haunt the Driftwood Tavern on North Kingshighway just off Natural Bridge Road and Jones told them about Mrs. Piccione: “What I knew about it, where she lived and that she owned the theatres, and that she was supposed to bring money home with her, and that she was supposed to sleep on the second floor.”

It is not necessary to narrate their movements in accurate detail or to describe all the circumstances of the robbery. Grind-staff, Stephens, Jaeger and Jones, after having previously “cased” the house, left the Driftwood Tavern sometime after midnight and drove to Mrs. Piccione’s residence in Grindstaff’s truck. “Jaeger handed Grind-staff a pistol,” the pistol employed in beating and robbing Mrs. Piccione, Jones returned to the tavern, and Grinstaff, Stephens and Jaeger, all wearing gloves and Grindstaff a mask, entered the basement at 6915 Delmar and “with Grindstaff using a screwdriver prying on the door Jaeger stated that he kicked it and forced it open.” As they entered the first floor “they heard a woman-hollering on the second floor,” the three of them ran up the stairs and on the way up Jaeger “tore a telephone from the wall.” Jaeger saw “a little small elderly lady” (Mrs. Cook the housekeeper) in a doorway of a bedroom and after tying her feet and hands with strips of cloth from a sheet, left her on a bed-covered up with blankets. Unable to find any large sums of money, $20,000 to $30,000, “they” beat Mrs. -Piccione with a screwdriver and a pistol, tied her feet and hands and blindfolded her in an effort to compel her to reveal the location of a wall safe or “where the money was.” Mrs. Piccione said, “I was bandaged, -sir, about three times; my legs were crossed like this, and my ankles bandaged very tight, and also my wrists; and it was so tight that, you know, the blood was throbbing. My ankles and my — I was beaten on 'the legs and through my body, through my chest and my ribs, and my head.” '(She was hospitalized for 12 days.) Finally the robbers took $15 in cash from Mrs. Piccione’s pocketbook, they found and took several silver dollars, a diamond bar pin, a platinum bar pin, a diamond ring, a diamond wristwatch, a large aquamarine stone, a mink stole, a mink coat and finally left in Mrs. Piccione’s pink Lincoln automobile — later found near Ramada Inn. On October 16 the police arrested Jones, “when they picked me up I didn’t know what they had in their mind,” and, in the language of the cross-examiner, he “confessed to the Piccione robbery.” On the same date, October 16, a police officer took possession of two guns found in a drawer in the Driftwood, one identified as Jaeger’s. Shortly Stephens, Grindstaff and Jaeger were arrested, Jaeger refused to sign a written statement but made a rather full oral admission to police officers and both Mrs. Piccione and Mrs. Cook identified him as one of the three robbers.

These -detailed circumstances, needless to say, support the charge and are indeed sufficient to establish, as the jury found, Jaeger’s guilt of robbery with a dangerous and deadly weapon. Some of his objections in his motion for a new trial, for example as to Instruction 1, are based upon the claim that he, Jaeger, did not personally assault Mrs. Piccione with the pistol. There is an assignment based upon the admission in evidence of the pistol, identified by Jones as the “gun that Jaeger handed to Grindstaff.” But without setting forth specific testimony and demonstrating, the evidence not only shows that Jaeger took part in the actual robbery of Mrs. Piccione, it also shows that he was “conspiring and counseling in planning the crime, as well as procuring articles to be used in the preparation thereof” and so in any event he was guilty as a principal. RSMo 1959, § 556.170, V.A.M.S.; State v. Tripp, Mo., 303 S.W.2d 627. Not only was the pistol properly admissible in evidence, there was no error in charging the jury that “All persons are equally guilty who act together with a common intent in the commission of a crime,” etc. State v. Churchill, Mo., 299 S.W.2d 475.

Instruction 4 instructed the jury in part “that any oral statement made by any defendant, even though it should contain matters that tend to prove his guilt, is admissible in evidence against the defendant and is to be given such probative value as evidence as you believe it deserves, if you find it was voluntarily given.” The partially briefed objection to this instruction (there is no citation of authorities to any of the five points raised) is that “it is confusing and misleading. The instruction refers to any oral statement by any defendant, which could refer to the testimony of Tommie Jones, who confessed to this crime on the witness stand, but who was not a defendant in this case and who also made a statement to Major Dougherty.” It may well be that this instruction should not be given, it is indeed fraught with hazards because unless the defendant was present or there are other exceptions, a confession or admission by one conspirator “is not ordinarily admissible against others participating in the crime or conspiracy and implicated thereby.” 22A C.J.S. Criminal Law § 769, ~p. 1156; State v. Hill, 352 Mo. 895, 179 S.W.2d 712. But whether a proper instruction or not the question here is whether for any of the reasons specifically presented it is manifestly prejudicial and therefore entitles the appellant to a new trial.

The appellant’s own stated point may contain a sufficient answer, while Thomas Allen Jones is “still charged with this crime,” he is not, in the appellant’s language, “a defendant in this case.” Jones testified that after his arrest he “confessed” to the police but any confession he may have made was not offered in evidence and no one testified to any admission he may have made. He did “turn state’s evidence” but that can hardly be construed as either a confession or an admission in their conventional sense or as employed in the instruction. The only admission testified to as such was that of the appellant Jaeger to the police and in its essence that admission did not differ materially from Jones’ testimony and so any admission by others would merely be corroborative of the one made by Jaeger. In view of all these reasons and circumstances it may not be said that Instruction 4 was manifestly prejudicial demanding the granting of a new trial. State v. McCloud, Mo., 328 S.W.2d 586.

The fifth error urged in the appellant’s brief is that the court erred in refusing to declare a mistrial by reason of the alleged highly prejudicial argument of the state’s attorney “when he repeatedly referred to the witnesses as having lied, after the court had sustained appellant’s objection to such an argument and had instructed counsel to refrain from the use of such an argument.” This objection requires but brief notice because the specific objection is not in fact supported by the record. The only witnesses were those offered by the state, the appellant had no witnesses and he did not testify and so the case is not as if the state’s attorney had applied denunciatory, inflammatory epithets to either the defendant or his witnesses as in State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524. The state’s attorney was referring to Mrs. Cook’s testimony and that of Mrs. Piccione identifying Jaeger as one of their assailants and he said to the jury, in part replying to appellant’s attack on Jones, “you’d have to believe she was lying, not mistaken. * * * They identified him * * *. You’d have to believe they were lying, they’d commit perjury.” Defense counsel instead of a proper objection made some comment, nevertheless the court said, “As to the use of the word ‘lying’ it may be stricken.” Later in arguing Jaeger’s admission to detectives state’s counsel said “the only way that you cannot take that evidence as gospel in this case is if you believe that they lied, that they perjured themselves.” The court denied a motion to discharge the jury but sustained an objection to the word “lied” and instructed the jury to disregard it. Again speaking of a chief of police and a police captain, counsel said, “Are they going to come into court just to lie?” Upon objection counsel apologized for use of the word as “spontaneous” and unintentional and withdrew the remark. The court again noted that the jury had been instructed to disregard the remark. This is not to say whether in any event the language was manifestly improper, it is sufficient to say that upon this record the court did not abuse its discretion in refusing to declare a mistrial.

Strangely enough, and unnecessarily it seems to the court, even though not without its difficulties, the serious and meritorious problem upon this appeal is the question of the fixing of the penalty, just when it was fixed, the sequence in which it should be fixed, and particularly what should be done about it at this juncture. Secondly it must be kept in mind that the appeal is concerned only with the particular case, its record and circumstances. The only authorities cited in the appellant's brief are upon this point and they are Criminal Rules 27:09 and 27.20, V.A.M.R. Rule 27.09 has to do with allocution and provides that “When the defendant appears for judgment and sentence, he must be informed by the court of the verdict of the jury and asked whether he has any legal cause to show why judgment and sentence should not be pronounced against him; and if no such sufficient cause be shown, the court must render the proper judgment and pronounce sentence thereon.” It has been said that this statute is mandatory and when the record in a case shows noncompliance with the rule “the judgment is reversed, and the cause remanded, with directions that the appellant be brought into court for allocution and judgment in accordance with the verdict.” State v. Deck, Mo., 262 S.W. 712. But failure to grant allocution is not the problem here. Rule 27.20 has to do with the motion for a new trial, its contents, filing, and when considered. This rule has some forceful significance here but at this point it only need be noted that the motion must now be filed “within ten days after the return of the verdict,” under the old statutes the time was four days. This statute also provides that the trial court may extend the time for filing “such motion for an additional period of thirty (30) days” and this the court did in this case. One other preliminary matter to be noted in connection with these two rules and all the Rule 27 rules is that they are rescripts of and adaptations of existing statutes, particularly chapter 546 relating to “Trials, Judgments and Executions in Criminal Cases.” While each rule has its prior parallel statute not all the statutes were adapted into the rules and neither were all statutes repealed.

The briefed assignment of error is this: “The trial court erred in sentencing defendant to 65 years on July 24, 1964 for the reason that the trial court had entered judgment for 15 years on March 4, 1965. This judgment was final because no order was ever entered setting aside this judgment and the purported sentencing on March 20, 1964 was of no force and effect because appellant’s motion for new trial has (had) not been filed or ruled on.” (Italics supplied for emphasis.) The assignment of error uses the word “judgment” without carefully noting its precise meaning and it erroneously assumes that the court's mention of 15 years was a “final judgment.” In this connection it may be noted that in its technical sense a “sentence” in a criminal case'is a “judgment” or a “final judgment.” And until there is a “sentence” there is no final, appealable judgment and an appeal before sentence is premature demanding that the submission on appeal be set aside and the cause remanded to the end that the defendant be brought before the court for the proper pronouncement of sentence. State v. Pruitt, Mo., 169 S.W.2d 399.

Jaeger admittedly had a prior felony record with the consequence that the jury found only his guilt or innocence of the principal offense and the trial judge had the duty of finding and fixing the punishment. RSMo 1959 Supp. § 556.280, V.A.M.S. And under the rules and the statutes (Rule 27.03, RSMo 1959, § 546.440, V.A.M.S.) another instance in which “the court shall assess and declare the punishment and render judgment accordingly” is when the jury agrees upon a verdict of guilty but fails to agree upon the punishment to be inflicted. But these rules and statutes do not purport to cover all circumstances attending a conviction or a verdict of guilty and of necessity they do not attempt to spell out the sequence of events, each case depends on whether there is to be another step in the proceeding. If the jury finds a verdict of guilty and fixes the punishment within proper limits (the court may reduce the punishment or disregard improper jury sentences, Rules 27.04, 27.05, 27.06)., the court “shall render a judgment according to such verdict, except as is otherwise provided in these Rules.” Criminal Rule 27.02. Thus when the jury finds a verdict of guilty and there is to be no motion for a new trial or pre-sentence investigation or postponement for any reason of the pronouncing of sentence, subdivision (a) of Criminal Rule 27.07 (a new rule adapted to modern procedures) would apply and “sentence shall be imposed and judgment rendered without unreasonable delay.”

But this was not the sequence of events in this case. On March 4, 1964, the jury returned a verdict finding the appellant Jaeger guilty of robbery by means of a dangerous and deadly weapon. The jury was polled and following that there is an entry entitled “PUNISHMENT ASSESSED.” In this entry the court inquired whether there was any lawful reason why the court “should not pronounce judgment at this timei” Upon defense counsel’s answering “No” the court said, “Well, under the law as I read it and understand it, I will pronounce judgment in accordance with the jury verdict on the charge on which the jury found you guilty, robbery first degree by means of a dangerous and deadly weapon, fifteen years. That will be the judgment. This is not the sentence at this time, however. Fifteen years. Remand you back to the Sheriff.” (Emphasis supplied.) On the same day and following this record entry there is an entry entitled “PRE-SENTENCE INVESTIGATION” and the record recites that the board of probation and parole is to make a presentence investigation of the defendant Jaeger and return a copy of the report into court. On March 10, 1964, “by leave of Court,” the defendant was granted 30 additional days in which to file a motion for a new trial.

The next captioned entry is on March 20, 1964, “SENTENCING OF DEFENDANT,” and under this entry the court had the record show the appearance of the parties “for sentencing.” Whereupon defense counsel interposed and said that he did not wish to waive any rights and he wanted the record to show that when the jury brought in its verdict “the Judge at that time entered — I don’t know whether it was a judgment or assessment or a sentence — of 15 years.” The court immediately said, “Oh, yes, you do. Specifically in the record it says. * * * Don’t be saying you don’t know because it’s in the record that I explained at the time it was not a sentence.” Then the court had the record again show that when the jury returned a verdict on March 4 “at which time the Court did after receiving the verdict inform the defendant it was not a sentence and informed the attorney it was not a sentence, that under the law he could not be sentenced until you had an opportunity to file a motion for new trial, et cetera.” The court then pointed to the fact that at the defendant’s request extra time had been granted in which to file a motion for new trial. “Therefore,” the Court said, “at this time the defendant has come to be sentenced in conforming with the Court’s direction, with his attorney.” (Italics supplied.) The court then proceeded to review the presentence report pointing out that since he was thirteen years old, the defendant had been in reformatories and prisons, in Oklahoma, California, Connecticut, Florida and Missouri, and on parole four times. After concluding his review of the presentence report the court announced, “And, therefore, I sentence you at this time to 65 years.”

The next captioned entry of April 13, 1964, is the filing of “DEFENDANT’S MOTION FOR A NEW TRIAL.” And on July 24, 1964, the caption is “SENTENCING.” In this connection the first entry is “Motion Overruled for New Trial.” Then there was a colloquy between court and counsel as to whether on March 20 (the 65 years sentence) the court had in fact “sentenced” the appellant, the court and counsel seemed to rather tentatively agree that since a motion for new trial was pending the court could not then sentence him. The court then reviewed the situation at some length, commenting that there had been a hung jury in Stephens’ trial (he finally got six years on a plea of guilty) and that Grindstaff hadn’t been tried and he took the matter under advisement. On July 29, 1964, the caption is “ORDERS SET ASIDE — NEW SENTENCE.” The court again reviewed the matters that had gone into his sentencing of Jaeger and the court finally reduced the sentence to 40 years. The entry recites that the sentence of 65 years “has "been set aside.”

And finally, on July 29, 1964, there was a “RECORD ENTRY OF JUDGMENT AND SENTENCE.” This entry of final judgment (RSMo 1959, § 546.590, V.A. M.S.) recites that orders “heretofore entered on March 20, 1964 and July 24, 1964, be and are hereby set aside” and in accordance with the jury verdict of guilty of robbery by means of a deadly weapon, the motion for new trial is overruled, and according to § 556.280 (second offender statute) the court sentenced the appellant Jaeger to 40 years’ imprisonment. On August 3 the appellant filed his notice of appeal and thereafter was permitted to .prosecute the appeal as a poor person.

The appellant does not complain of the final judgment and sentence of 40 years (July 29, 1964) from which he necessarily appealed (State v. Pruitt, supra), “there is no final disposition of a cause until there is a final judgment, and a court does not lose jurisdiction of a case until final judgment is entered, though such be not done until a subsequent term.” Ex parte Hartley, 330 Mo. 338, 342, 49 S.W.2d 119, 120. The basic thrust of the appellant’s assignment of error is that whatever the court may have done upon the return of the verdict on March 4 the record recitation of 15 years was the sentence and final judgment and could not thereafter be altered. While the court’s procedure was most irregular, as indicated, the “15 years” was not intended as “the sentence” and there was in fact no sentencing of the appellant on that occasion. Not only is it true as a matter of fact but as indicated, when there is a jury verdict and other procedures or matters are to follow, as here, both a motion for a new trial and presentence procedure, it is not proper -to pronounce sentence before these matters have been disposed of. In fact a motion for a new trial filed after sentence is not timely and at least prior to the adoption of the Civil Code preserved nothing for review. State v. Deck, supra; State v. Nistendirk, Mo.App., 204 S.W. 1111. Under “both the rule and the statute (Criminal Rule 27.20; RSMo 1959, § 547.030, V.A.M.S.) the motion for a new trial “shall be filed before judgment” and this requirement is mandatory. State v. West, Mo., 270 S.W. 279; State v. Lauridsen, Mo.App., 318 S.W.2d 511; State v. Riley, 228 Mo. 431, 128 S.W. 731. Quoting from another Missouri case the court said, “In this case the record shows affirmatively that the defendant was not given time to file his motion for new -trial nor granted his allocution. The judgment then pronounced was irregular, and should be set aside.” State v. Keller, 304 Mo. 63, 71, 263 S.W. 171, 173. The proper order, form, or sequence after a jury verdict in a criminal case when further and other steps are to be taken, such as a new trial, has been set forth on numerous occasions, for example see State v. West, 270 S.W. l. c. 282. Likewise when presentence procedures are to be followed, the presentence investigation necessarily is made “before the imposition of sentence or the granting of probation.” Criminal Rule 27.07(b). In short the record entry on March 4 relating to fifteen years, entered before the filing and ruling on the motion for a new trial and before the return of the ordered presentence investigation, was not in fact a sentence or judgment, certainly not a final judgment. State v. Schierhoff, 103 Mo. 47, 15 S.W. 151; State v. Keller, supra. In State v. Grant, Mo., 380 S.W.2d 799, 803, the court said, “judgment purports to have been rendered and sentence imposed on the day the verdict was returned in spite of the fact that the defendant had the legal right under S.Ct. Rule 27.20 to file a motion for new trial within ten days after the return of the verdict, which time as shown by the same record had been extended to thirty days. A judgment so rendered would be illegal and ineffective to obstruct the defendant’s right to file a valid motion for new trial or to appeal from the ruling thereon and a judgment duly rendered.”

The other assignment of error is that the sentence of 40 years’ imprisonment is excessive. It is said in support of the argument that one of the persons charged, Jones no doubt, is on probation, that Stephens received a sentence of six years and Grindstaff has not been tried and that “all are habitual criminals.” But the sentence is within the punishment prescribed by the statute: “Every person convicted of robbery in the first degree by means of a dangerous and deadly weapon shall suffer death, or be punished by imprisonment in the penitentiary for not less than five years.” RSMo 1959, § 560.135, V.A.M.S. It may be that the appellant’s confederates justly deserve far greater sentences, but that does not establish the claim that the appellant’s sentence of forty years for the same crime is excessive or that it should be set aside. State v. Maxwell, Mo., 376 S.W.2d 170, 173-174; State v. Cooley, Mo., 221 S.W.2d 480, 485.

Questions not required to be presented in a motion for a new trial have been examined and the transcript shows compliance with all matters necessary to be considered by this court “upon the record before it.” Criminal Rule 28.02; RSMo 1959, § 547.270, V.A.M.S.

And for the indicated reasons the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

EAGER, P. J., and STORCKMAN, J., concur.

FINCH, J., concurs in result.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Joseph Edward REEDER, Appellant.
    No. 51311.
    Supreme Court of Missouri, Division No. 1.
    Oct. 11, 1965.

      Norman H. Anderson, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, James D. Anderson, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Emil J. Kohl, St. Louis, for appellant.
   HOUSER, Commissioner.

Joseph Edward Reeder, convicted of first degree robbery by means of a dangerous and deadly weapon, § 560.120, V.A.M.S., and of four previous felonies under § 556.280, V.A.M.S., and sentenced to 15 years in the penitentiary, has appealed from the judgment of conviction.

The state’s evidence indicated that after an evening of drinking and dancing at a tavern, the prosecuting witness Lehnhoff, defendant Reeder, codefendant Bobby Mc-Gaha, Reeder’s girl friend and another woman and baby started to leave the tavern, about 1:30 or 2 a.m. It was raining, so Lehnhoff offered to drive them in his car, which was nearby the tavern door, to their car, which was on a parking lot at the end of the block. When they arrived at the parking lot McGaha got out of the car, pulled a gun on Lehnhoff, told him to get out of his car, and to stand still and not move or that McGaha would shoot. While McGaha held the gun on Lehnhoff, Reeder removed Lehnhoff's wallet, took $34 from the wallet, stuffed the empty wallet back in Lehnhoff’s shirt pocket, and then reached around in back of Lehnhoff and got the silver change (about $1.50) out of Lehn-hoff’s right pants pocket. McGaha was holding the gun on Lehnhoff during the entire time. One of them ordered Lehnhoff to leave, so he got in his car and drove away. These events occurred at Broadway and Madison Street in the City of St. Louis. At a police station he reported the robbery. A detective later showed Lehnhoff a picture of Reeder, which he identified as one of the robbers. Thereafter Lehnhoff picked Reeder and McGaha out of a police lineup, positively identifying them as the participants in the robbery.

Appellant’s first point is that the court erred in overruling his motion for new trial because the verdict was the result of bias and prejudice upon the part of the jury. Detective Monahan had testified that it was raining on May 30, 1964 between 10:30 and 11 o’clock p. m. when he saw McGaha at the tavern. Policeman Finnegan had testified that at about 11 o’clock p. m. when he saw McGaha at the tavern it was raining hard enough to require the use of windshield wipers. Lehnhoff had testified that it was raining when he left the tavern at about 1 o’clock a. m. on May 31, 1964. For the purpose of impeaching these three state’s witnesses appellant introduced into evidence Exhibit No. 1, a certified copy of the Local Climatological Data of the U. S. Department of Commerce, Weather Bureau, which listed zero precipitation for the dates of May 30 and 31', 1964. J.uror No-. 7 inquired where these readings were taken, and the court suggested that they were taken at the Customs House (12th and Market, downtown St. Louis) and at Lambert Field (in St. Louis County). The assistant circuit attorney disputed this, claiming they were taken at Lambert Field. Counsel for defendant opined that the readings were taken at 12th and Market. Whereupon Juror No. 7 interjected: “But it could be raining across — He was interrupted by counsel, who said he could show that the reading was made only at Lambert Field'. Juror No. 2 asked to make an inquiry and the court permitted him to ask whether there could have been a local shower in that area that would not be recorded in the weather bureau record. One of the attorneys offered to answer but the court refused to permit the lawyers to testify. In rebuttal the state offered Exhibit A, to impeach defendant’s Exhibit 1. The court admitted in evidence Exhibit A, which was a statement issued by the weather bureau of the U. S. Department of Commerce, St. Louis station, on December 2, 1964, as follows: “I hereby certify that records of the U. S. Weather Bureau at our official station at Lambert Field, Hazelwood, Missouri, indicate that no precipitation fell at Lambert Field on May 30th, or May 31st, 1964. This applies solely to our official station at Lambert Field, and does not apply to other locations in the metropolitan area. Our radar for the period May 30th and 31st, 1964, indicates that showers were present around the metropolitan area during the evening of May 30th and the early morning hours of the 31st.”

Later the state brought a meteorologist to the stand. He testified that Exhibit 1 is a record of weather conditions at the two specific points only; that the bureau’s radar reports showed areas of rainfall surrounding the St. Louis area on the night of the 30th and morning of the 31st of May, 1964, and that in his opinion it is very likely that some form of rain did occur within and around the St. Louis area that night, or in the early hours the next morning.

Appellant claims that Juror No. 7 demonstrated his partiality to the state’s case by “rejecting” the weather bureau’s report that no rain had fallen on the night in question, and that his bias would influence the judgment of the other jurors before they had a chance to hear all of the evidence. It is argued that Juror No. 7 demonstrated that he would not accept evidence favorable to the defendant. Appellant cites State v. Wheeler, 108 Mo. 658, 18 S.W. 924, in which a juror, after being sworn but before any evidence was introduced, used brutal language to the defendant, thereby exhibiting prejudice. The court’s action in overruling a challenge to the juror’s right to sit in judgment was held ground for a new trial. The case is not comparable because the action of the juror clearly indicated bias and prejudice and the point was properly preserved.

In the case before us the point was first raised in the motion for new trial. Where misconduct of jurors is first presented at that stage an affirmative showing must be made that defendant and his counsel were ignorant of the fact until after the trial. State v. McGee, 336 Mo. 1082, 83 S.W.2d 98. In his motion for new trial defendant alleged that this was concealed from defendant and his counsel. In- his brief appellant urges that the full import and force of the juror’s words were not brought fully to the attention of appellant until the transcript was completed. These unverified statements do not prove themselves and do not constitute an affirmative showing of the concealment.

If the point had Been timely and properly raised it would nevertheless not merit a new trial. The nature of the statement and question was not such as to exhibit bias or prejudice. It cannot fairly be said that either of the jurors demonstrated a rejection of or refusal to accept defendant’s evidence on the issue. Instead of showing a closed mind on the subject the statement of Juror No. 7 and the query-of Juror No. 2 demonstrate an understandable reaction to the evidence first introduced and a desire to be further and more fully informed. Nothing more is shown than a lively and' active interest by the jurors in the issue of “rain or no rain” and an attempt to clarify the question in their minds. The state introduced clarifying evidence which, judging from the fact that the jurors asked no further questions, apparently satisfied their curiosity. There is no error in this connection.

Next it is claimed that the state erred in giving main verdict-directing Instruction No. 1 for the reason that it “required the jury to find facts in excess of those required by the statute and the State failed to prove facts sufficient to warrant a conviction in the light of the instructions given.” The argument is that § 560.120, V.A. M.S. interdicts the felonious taking of the property of another by violence to his person or by putting him in fear of some immediate injury to his person, whereas No. 1 requires a finding of violence to his person and by putting him in fear. The instruction required a finding that defendant “did feloniously assault one Norman Lehn-hoff, with a dangerous and deadly weapon, in the form of an automatic pistol, and that by putting said Norman Lehnhoff in fear of immediate injury to his person * * * .” It is- said that No. 1 is clearly contrary to § 560.120, which provides that first degree robbery may be committed by feloniously taking the property of another from his person, or in his presence and against his will, “by violence to his person, or by putting him in fear of some immediate injury to his person.”

The crime of robbery in the first degree may be committed by either of the two ways indicated (by violence to the person or by putting the person in fear of some immediate bodily harm), State v. Burns, Mo.Sup., 280 S.W.2d 119, 122 [3], or by both. It is not necessary that there be proof of both of the ways alleged-, but only that there be proof of at least one. State v. Thompson, Mo.Sup., 299 S.W.2d 468. Where there is substantial evidence of the one but not of the other and both alternatives are submitted in the conjunctive there is no error, because in that case the instruction is more favorable to the defendant than the law requires. State v. Burns, supra, 280 S.W.2d, l. c. 122 [3]. In this case, however, there was evidence to support both. There was evidence that there was violence to the person — a felonious assault, by the act of defendant in removing the victim’s wallet from his person at the point of the gun held by the accomplice with whom defendant was jointly acting, and in stuffing the empty wallet back in the victim’s shirt pocket after extracting the money, and by reaching into the victim’s pants pocket and removing the silver coins.

Citing State v. Ray, Mo.Sup., 354 S.W.2d 840, appellant claims that the evidence does not show violence to the person. In that case defendant pointed a gun at the attendant at the check-out station at a grocery store and demanded that she open the cash register. She opened the register and defendant took money therefrom and fled. The statement in the opinion “ * * * the evidence did not show that the robbery was accomplished- by violence * * * ” is seized upon by appellant to support his contention that there was no violence to the person in this case. The suggested conclusion does not follow because here there was a touching of the person of the victim, a factor absent in Ray. The slightest touching of another in anger, or by shoving a gun into the ribs of the victim of a robbery, is a battery. State v. Burns, supra. Defendant’s act of removing Lehnhoff’s wallet from his pocket, stuffing it back into his shirt pocket, and reaching into his pants pocket for the silver constituted a touching, a battery, an act of violence to the person.

There was also evidence of putting the victim in fear of some immediate injury to his person. McGaha, with whom this robbery was jointly committed and for whose acts defendant is equally responsible, reached into his boot, removed therefrom an automatic pistol, ordered defendant to get out of his car, and said “I’ve got a gun, hold still or I’m going to shoot.” Lehnhoff complied with his order to get out of the car. The two men then told the victim to “stand there by the car, don’t move, stand right there * * Lehnhoff complied with their directions. One of them said “Hold still.” Lehnhoff held still and submitted to the taking of the wallet and silver from his person. Appellant claims that there is no evidence that Lehnhoff was put in fear; that there was no expression of emotions as in State v. Ray, supra, (the victim said she was “pretty startled”), and in State v. Parker, Mo.Sup., 324 S.W.2d 717 (the victim said “I was scared — I was scared to death”), and no statement from which it could be inferred that Lehnhoff was in fear or from which his state of mind or emotional state could be ascertained. This claim must be rejected. The fact that Lehnhoff got out of the car, stood still, did not move, and did not resist but submitted to the robbery under the influence of the pistol, is substantial evidence that he feared the consequences of his failure to do so. Testimony from the victim characterizing his mental or emotional state or descriptive of his state of mind is not essential where there is evidence of compliance and- submission under the duress and coercion inherent in the situation where a robber points a gun at a person in the commission of a robbery. “The fact that [Mrs. Meyer] complied with defendant’s demand that she open the cash register would indicate that she feared the consequences of her failure to do so. It is contrary to the universal experience of all mankind to say that a person would experience no fear when confronted with a gun in the hands of a robber. It is a familiar axiom that ‘actions speak louder than words.’ We do not think Mrs. Meyer would have opened the register and permitted the defendant to take the money therefrom had she not been motivated by fear.” State v. Ray, supra, 354 S.W.2d. l. c. 843.

The proof of one alternative being sufficient, the existence of substantial evidence of both alternatives (violence to the person and fear of immediate injury to the person) certainly validates Instruction No. Í.

Appellant’s last point is that the court erred in overruling his motion for acquittal at the close of the state’s case for the reason that “there is no competent and substantial evidence on the whole record to show that the Appellant took the money mentioned in the evidence.” The argument is that since this robbery took place in a poorly lighted place, and since Lehnhoff was facing McGaha and looking at Mc-Gaha continuously most of the time, and since there was no testimony that Lehnhoff saw Reeder or looked at Reeder or looked in his direction and recognized him as Reeder, or recognized Reeder’s voice, it follows that Lehnhoff’s testimony that Reeder took money from his pocket is a conclusion, and there is a failure of proof that Reeder was involved, and therefore this verdict is based upon conjecture, surmise and conclusions.

The record does not support this argument. Lehnhoff testified that Reeder was present while McGaha produced the pistol, told Lehnhoff to get out of the car, and was present while he was getting out of the car; that “Reeder said ‘hold still’ and he reached in my pocket, my back pocket, got my wallet out, took the money out of my wallet, * * * stacked it in my shirt pocket like this (indicating).” In answer to the question “Which one did this ?” he answered “Reeder. * * * That’s right, and then he reached around, while he was standing, he reached around in back of me and got my — this right pants pocket here, got the silver out of my pants pocket, I had a dollar and a half, two dollars maybe, I’m not sure just how much, I had a little silver in my pocket, and he got that.” The following excerpts are from the transcript: “Q Was Reeder standing there with him [referring to McGaha] ? A That’s right. Q And Reeder was the one that went in your pocket and took your billfold? A That’s right. * * * Q Now, you say that the man you describe as Reed-er got out the right side of the car, is that correct? A Yes. * * * He was going around in back of the car, in back of my ear while McGaha was telling me to get out. * * * Q Now, when this man that you say was Joe Reeder approached you, from what direction did he approach you? A From my left. Q And what did he do then? A He got in my pocket, said, ‘hold still.’ He got in my pocket, got out my wallet, took my money out of it and stuck it in my shirt pocket, stuffed the wallet in my shirt pocket. * * * He * * * reached around behind me and got behind me and reached in my pocket, in my right hand pocket and got the silver out of my right hand pants pocket. * * * [T]hey told me to get in the car and leave, which I did.” The foregoing, together with the fact that Reeder was the only other man present; the evidence that there was an ordinary street light on the corner, and light from Lehnhoff’s automobile — his headlights were on and were shining against a building; that Lehnhoff saw and identified McGaha, the make, model and color of the waiting automobile and could describe the color and size of the automatic pistol, and the fact that the jury could infer that Lehnhoff could recognize Reeder’s voice (having been associating with him for several hours immediately prior thereto), constitute substantial direct and circumstantial evidence that Reeder took the money and that Lehnhoff could have seen and did see Reeder do what he said he did, and supports the conviction as against the contention that the testimony implicating Reeder constituted a conclusion.

Under Criminal Rule 28.02, V.A.M.R. we have reviewed the information, verdict, judgment and sentence on the record before us and we find them proper in form and substance.

The judgment is affirmed.

WELBORN, and HIGGINS, CC., concur.

PER CURIAM:

The foregoing opinion by HOUSER, C, is adopted as the opinion of the Court.

All of the Judges concur.


author: DONNELLY, Judge.

text:
    STATE of Missouri, Respondent, v. Jack Leroy RILEY, Appellant.
    No. 51070.
    Supreme Court of Missouri, Division No. 1.
    Oct. 11, 1965.

      Norman H. Anderson, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for respondent
    John Grossman, St. Louis, for appellant.
   DONNELLY, Judge.

Defendant, Jack Leroy R-iley, was convicted of robbery by means of a deadly weapon under § 560.120 RSMo 1959, V.A.M.S., by a jury in the Circuit Court of the City of St. Louis, and his punishment was assessed at imprisonment in the State Penitentiary for a term of ninety-nine years. Following rendition of judgment and imposition of sentence in accordance with the verdict, an appeal was perfected to this Court.

Defendant contends: (1) that the trial court erred in refusing to permit defendant to discharge his court-appointed attorney; and (2) that the trial court abused its discretion in refusing to grant defendant a continuance for the purpose of procuring the services of counsel of his choice.

The trial proceedings began in Division No. 10 in the Circuit Court of the City of St. Louis on June 15, 1964. Before the voir dire examination of the jury and out of the hearing of the jury panel the defendant advised the Court that he wished to discharge his court-appointed counsel, Mr. John Grossman. The Court refused his request. Defendant then asked leave to question Mr. Grossman. This request was granted and defendant inquired as to whether Mr. Grossman was in good standing. The Court answered that counsel “is an attorney in good standing and a very able and competent attorney, and has been a member of this Bar for many, many years, and personally known to the Court.”

Defendant then questioned his court-appointed counsel, as follows:

“THE WITNESS: Do you personally feel, Mr. Grossman, that you have enough experience in criminal law in this state, to defend me on this charge?
“MR. GROSSMAN: I have not.
“THE WITNESS: Did you not tell me in February ’64 that you wanted me to write the Judge, to get you off the case, because you were not competent to defend me on a criminal case ?
“MR. GROSSMAN: I did.
“THE WITNESS: Tell me, Mr. Gross-man, have you not written or spoken to the Judge, in regards to being taken off the case-?
“MR. GROSSMAN: I have spoken to Judge McMullan and to Judge Walsh.”

Defendant then stated as follows:

“THE WITNESS: * * * I make a motion for a continuance, because in the duration of the summer my parents and relatives will get me money to hire a good legal counsel; that is, a criminal lawyer.”

Defendant, on cross-examination, testified that he had no money and no expectancy of earning any; that he had been in the City Jail for eight months; that he expected his family, if given time, to come up with the money to hire a lawyer to represent him; that he knew eight months before, in November, that the charges against him were serious but had never requested aid from his family.

Thereafter, voir dire examination of the jury panel was conducted and -the Court declared an adjournment to June Id, 4964. At 5:25 p. m. on June 15, 1964, the following occurred out of the presence of the jury but in the presence of defendant:

“THE COURT: All right, Mr. Gross-man, you may proceed.
“MR. GROSSMAN: My name is John Grossman; I have been a member of the Bar of the State of Missouri for many years—
“THE COURT: (Interrupting) How many years have you been a member of the Bar?
“MR. GROSSMAN: Forty-seven.
“THE COURT: Forty-seven years?
“MR. GROSSMAN: Yes, sir. I am going to offer in evidence, or dictate into the evidence, a statement—
“THE COURT: (Interrupting) Into the record, you mean?
“MR. GROSSMAN: Into the record, which is offered for the purpose of supporting the defense application for a continuance. I am offering this statement on my own behalf as well as on behalf of the defendant.
“I advised the defendant upon being appointed that I felt, and I still feel that I am not qualified to participate, or to act for him—
“THE COURT: (Interrupting) Why do you feel that?
“MR. GROSSMAN: I am getting to that, your Honor.
“THE COURT: All right.
“MR. GROSSMAN: That I didn’t feel I was qualified to act for him, in the defense of a case of so serious a nature. I was not advised, nor do I believe that the defendant was advised until this morning that the State was demanding the death penalty. I was not advised directly of the fact that the case was pending — until last Wednesday, which was June 10th, of the fact that this case was going to trial. I had always been of the belief that so far as the State was concerned, it was going to proceed with the trial in a charge against the defendant and his co-defendant, and that the State was going to prosecute the case of the co-defendant Jeff Hanger first.
“I feel that I am not qualified to act as this man’s attorney for the reason that in the last — I don’t believe I have tried a criminal case in over thirty years. I have not been conversant with the rules of procedure, which have changed so drastically in the last few years, particularly with reference to criminal law.; I have not followed the changes made with reference to the substantive law, and in addition to that, experience would be highly — which I regard would be highly necessary, in the defense of a crime as serious as the one before the Court.
“I feel that the State would not be prejudiced by this continuance in allowing the defendant additional time within which to hire counsel of his own choosing.
“I appreciate the fact that there has been some six or seven or eight months elapsed since the defendant was charged with this crime, but during that period of time he had been led to believe that his case would not be tried since it was his belief that the State was going to try Hanger first — or, at least try the murder charge first. The Defendant here has advised the Court that he is without funds, and that he hopes to raise the funds, if the case is passed over until September. That has been my suggestion, that the case be passed to September, and that the defendant be given an opportunity to retain counsel, and with the instructions to report back to this court by August 15th, on whether or not he has retained counsel. If, on August 15th, he has not retained counsel, and so advises the Court, then I would be very glad, as I am now, to defend the defendant.”

The motion for continuance was overruled and the case went to trial on June 16, 1964.

During the course of the trial, Mr. Gross-man again asked to be relieved as counsel for defendant and was refused.

In State v. Glenn, Mo., 317 S.W.2d 403, 406, it is stated: “Art. I, Sec. 18(a), Constitution of Missouri, 1945, V.A.M.S., provides "‘That in criminal prosecutions the accused shall have the -right to appear and defend, .in person and by counsel ;***.’ In aid of this provision it is provided by § 545.820 RSMo 1949, V.A.M.S., that ‘If any person about to be arraigned upon an indictment for a felony be without counsel to conduct his defense, and be unable to employ any, it shall be the duty of the court to assign him counsel, at his request, not exceeding two, who shall have free access to the prisoner at all reasonable hours.’ See also the provisions of Supreme Court Rule 29.01, 42 V.A.M.S.”

However, the selection of counsel is within the discretion of the trial court and a trial court does not abuse its discretion in failing to assign an accused’s choice. State v. Whitaker, Mo.Sup., 312 S.W.2d 34; State v. Sublett, 318 Mo. 1142, 4 S.W.2d 463.

Here, defendant contends that the trial court forced Grossman upon defendant and refused to discharge him as his court-appointed attorney. In State v. Warren, Mo.Sup., 321 S.W.2d 705, after defendant had refused the services of the public defender and had dismissed two court-appointed attorneys, he stated he wanted to represent himself. The trial court, over defendant’s objections, appointed counsel to defend him and the action of the trial court was sustained. See also State v. Greaves, 243 Mo. 540, 147 S.W. 973. In Johnson v. United States, U.S.C.A. 8, 318 F.2d 855, cited by defendant, it was recognized that a Court should not force an attorney on an accused if the accused desires to try his own case; however, in the Johnson case, the accused was permitted to try his own case, and then complained, and his conviction was affirmed. There is nothing in the record to show that defendant was harmed by Gross-man’s efforts or that his representation was ineffective. On the contrary, we have reviewed carefully the entire record in the trial court and conclude that Grossman performed capably and diligently and that defendant had a fair trial. Further, the record does not support defendant’s present contention that he desired to try his own case. This point is ruled against defendant.

The next question is whether the trial court abused its discretion in denying defendant’s request for continuance, and in going to trial on June 16, 1964. See Annotation, 66 A.L.R.2d 298, 300, 307.

In State v. Ross, Mo.Sup., 375 S.W.2d 182, 185, it was said: “It is the general rule that the granting or refusing of an application for a continuance rests within the sound discretion of the trial court. State v. Belleville, Mo.App., 362 S.W.2d 77; State v. White, Mo.App., 313 S.W.2d 47. The action of the trial court with respect to the requested continuance is subject to appellate review. State v. Jackson, 344 Mo. 1055, 130 S.W.2d 595, 596. Upon such review, each case must be judged upon its peculiar facts when .the propriety of the granting or refusal of a request for continuance "is challenged. State v. Maddox, 117 Mo. 667, 23 S.W. 771, 775.”

The facts here are that defendant had been in jail for eight months, at all times fully cognizant of the severity of the charges against him, and that his counsel had been appointed four or five months before the trial. Defendant had done nothing in an effort to procure counsel of his own choice. The trial court was of the opinion that the motion for continuance was simply dilatory. We agree.

Defendant cites the cases of State v. Kauffman, 329 Mo. 813, 46 S.W.2d 843, 846; State v. Wade, 307 Mo. 291, 270 S.W. 298, 301; State v. Maddox, 117 Mo. 667, 23 S.W. 771. In the Kauffman case, the accused, denied a continuance, was deprived thereby of the right to adequately prepare an insanity defense, the only defense he had. More time was required for examination and observation of accused before a conclusion could be reached as to his mental condition. In the Wade case, the accused sought a continuance in order to procure the attendance of witnesses absent or too ill to testify. These witnesses were material to his defense. In the Maddox case, the accused sought a continuance in order to procure the attendance of a witness too ill to testify in Court or by deposition and by whom accused expected to prove an alibi. None of these cases are controlling here. The trial court did not abuse its discretion in denying defendant a continuance.

An examination of the record as required by S.Ct. Rule 28.02, V.A.M.R., discloses no error. The judgment is affirmed.

All concur.


author: HYDE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. James C. BLAYLOCK, Jr., Appellant.
    No. 51341.
    Supreme Court of Missouri, Division No. 1.
    Oct. 11, 1965.

      Norman H. Anderson, Atty. Gen., Richard C. Ashby, Asst. Atty. Gen., Jefferson City, for respondent.
    Fred Leicht, Jr., St. Louis, for appellant.
   HYDE, Presiding Judge.

Appeal from order denying petitioner’s motion to withdraw plea of guilty and to vacate sentence and judgment (Crim. Rules 27.25, 27.26) considered as proceeding to vacate sentence under Rule 27.26. See State v. Harris, Mo.Sup., 382 S.W.2d 642, 643.

Petitioner was arrested on June 16, 1960 for killing with a knife, on that day, Rosie Lee Neal who had previously lived with him but had left him to live with another man. Petitioner was indicted for first degree murder and arraigned July 8, 1960 (coroner’s inquest was held prior to that date) at which time Joseph Noskay of the public defender office appeared and entered a plea of not guilty for him. Petitioner desired to be represented by Morris Shenker who set a fee of $1,000.00 and on July 21, 1960, a stepbrother of petitioner paid Mr. Shenker $300.00. Thereafter, Laurence J. Lee of Mr. Shenker’s office came to see petitioner and took a statement from him. There was some kind of a hearing (apparently about bond) attended by Mr. Lee or someone from the Shenker office. Previously, Mr. Godfrey of the public defender office had interviewed petitioner. Trial was set for August 8, 1960, and on August 5, 1960, petitioner said he saw Mr. Lee “in Dock” and “Talked to him through the screen”; and that “he said he would be in court at my trial.” As to this Mr. Lee said: “I may have, but I don’t recall it though.” However, no one from Mr. Shenker’s office appeared on August 8,1960 because the balance of the $1,000.00 fee had not been paid. $150.00 of this fee was returned to defendant’s stepbrother on September 21,1961.

Mr. Noskay did appear on August 8,1960 and testified as to the situation, as follows:

“Q On August 8 did the petitioner James Blaylock, did he, at any time before the plea was entered, inform you that an attorney from the office of Morris Shenker was to represent him in this matter?
“A He had.
“Q And what was your response to this ?
“A We told him that we had discussed this matter with Mr. Shenker and as the fee had not been fully paid, Mr. Shenker’s office decided not to represent him.
“Q And by talking to him, the office of Mr. Shenker, does this mean that you actually called the offices of Shenker on that morning ?
“A I’m not sure whether we called or discussed it with Mr. Lee personally.
“Q With Mr. Lee?
“A Yes, sir.
“Q And at that time what did he tell you?
“A He told us that he did not represent the defendant.
“Q And did you convey this information to the defendant?
“A I did.
“Q And what was the defendant’s response at that time ?
“A He made no response at all.
“Q He did not press the fact that someone from Shenker’s office was to represent him?
“A There was no discussion about it, as far as I can remember, but when we told him Mr. Shenker’s office had refused to represent him, then he was resigned to the situation.
“Q And he, willingly accepted the advice that you gave him as to the plea of guilty ?
“A He did.
“Q And again I ask, did you explain all the possible ramifications of such a plea to him at that time ?
“A I did.
“Q And you were satisfied that he understood what such a plea would mean?
“A I am satisfied and I was at that time.”

Mr. Noskay also testified that before August 8, 1960 Mr. Godfrey had discussed with petitioner the possibility of entering a plea of guilty; and that he informed petitioner of the possible penalties and of his right to trial by jury. Just what either Mr. Noskay or Mr. Godfrey specifically told petitioner does not appear in the transcript. Petitioner in answers to interrogatories denied that Mr. Noskay explained the possible consequences of a plea of guilty to murder first degree and said: “Mr. Noskay simply told me to tell the judge I did it.” Petitioner also said he told Mr. Noskay that an attorney from Mr. Shenker’s office had been retained to represent him and that his stepbrother had paid Mr. Shenker a $300.00 retainer fee; but that Mr. Noskay said he had called Mr. Shenker’s office and no one knew anything about it; and that Mr. Nos-kay did not advise him he could attempt to obtain a continuance until Mr. Shenker’s office could be contacted. Petitioner (37 years old, with 6th grade education) further said he never discussed the facts of the crime with Mr. Noskay, never voluntarily consented to having Mr. Noskay represent him on August 8,1960.

The proceedings on August 8, 1960, were as follows:

“THE COURT: This is cause No. 1027-1 one James Clifton Blaylock, Jr. is charged with Murder in the First Degree, and is represented by Mr. Joseph Noskay.
“You may proceed, Mr. Noskay.
“MR. NOSKAY: In this case the defendant withdraws his former plea of not guilty and enters a plea of guilty as charged.
“THE COURT: What did this man do, Mr. Draper?”

Mr. Draper, Assistant Circuit Attorney, then gave the State’s version of the facts of the case and made a recommendation of life imprisonment.

All that thereafter occurred was as follows:

“THE COURT: You did do this, did you?
“THE DEFENDANT: Yes.
“THE COURT: In Cause No. 1027-1 the Court hereby accepts your plea of guilty and your admission, James Clifton Blaylock, of Murder in the First Degree ond on your plea of guilty and your admission you are sentenced to life imprisonment.”

Petitioner filed motion to vacate October 10, 1962, which was denied without a hearing October 31, 1962. The present motion filed November 29, 1963, on which a hearing was held on January 22, 1965, was denied on February 3, 1965 with findings as follows:

“The Court finds that the defendant had never completed a contract of employment with Morris Shenker and, therefore, Morris Shenker was never the defendant’s lawyer, and Mr. Noskay was appointed by the Court, after his office made a complete investigation of the circumstances of the defendant’s arrest. The defendant understood the consequences of his plea of guilty and his admission before the Court. Therefore, the defendant is not entitled to any relief as provided by law.”

In State v. Williams, Mo.Sup., 361 S.W.2d 772, 773, we said: “Our Rule 25.04 (as does Federal Rule 11) provides: ‘The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.’ This plea was accepted by the court without questioning, cautioning, or saying anything to the defendant or in any way asking if he assented to the plea. The only inquiry made by the court was to defendant’s counsel, saying: ‘You have explained to the defendant the possibilities of punishment that can prevail. It can be death, it can be life imprisonment or less? Mr. Mcllrath: That’s right.’ ” There was also an equivocal plea in that case and other circumstances from which we held on appeal that manifest injustice appeared within the meaning of Rule 27.25 and reversed the judgment. However, we pointed out therein : “ ‘The guiding rules are that a plea of guilty is but a confession in open court. Like a confession out of court it should be received with caution. It should never be received unless it is freely and voluntarily made.’ ”

The Williams case was decided on an appeal but such an issue has been decided in the Federal, courts on a motion to vacate under Sec. 2255, Title 28, US Code, the same remedy as provided by our Rule 27.26. In United States v. Davis, USCA 7, 212 F.2d 264, 267, an order denying a motion to vacate was reversed; the motion alleging the plea of guilty was not made voluntarily with an understanding of the nature of the charge. The Court stated the requirements of Federal Rule 11, and said: “This rule is stated in mandatory language and the court is not relieved of the duty which it imposes solely because the accused, as here, is represented by counsel of his choice.” The Court further said of the transcript therein: “It does not show that the indictment was read aloud nor the substance of its contents stated in the defendant’s presence. He was not asked whether he understood with what he was charged, nor did the court make an inquiry of any kind to ascertain whether the defendant was correctly advised of the nature of the indictment against him. * * * We do not mean to say that a District Court must in every case follow a particular ritual in order to comply with Rule 11. A brief discussion with the defendant regarding the nature of the charges may normally be the simplest and most direct means of ascertaining the state of his knowledge. Or there may be other circumstances from which it is evident that the defendant has the requisite understanding. See Michener v. United States, 8 Cir., 181 F.2d 911, 918; United States v. Denniston, 2 Cir., 89 F.2d 696, 698, 110 A.L.R. 1296. Whatever the means employed, a fair compliance with the Supreme Court rule would insure that the defendant has the knowledge and understanding essential to a valid plea.” See also United States v. Diggs, (USCA 6) 304 F.2d 929, 930, and cases cited; Domenica v. United States, (USCA 1) 292 F.2d 483, 485; Julian v. United States, (USCA 6) 236 F.2d 155, 158.

In this case, the transcript does not show any discussion with or inquiry of petitioner by the Judge except the one leading question after the recital of facts by the Assistant Circuit Attorney, namely: “You did do this, did you?” Moreover, the transcript shows no inquiry at all by the Judge of Mr. Noskay as to what information or explanation of the charge and' the plea he entered had been given petitioner. Compare the thorough, careful discussion and explanation of the Judge in State v. Harris, supra, (382 S.W.2d l. c. 644-645) which we approved. The finding that no contract was completed with Mr. Shenker does not justify the overruling of petitioner’s motion but instead indicates the need for a thorough inquiry by the court as to the understanding of the plea and its consequences by petitioner and the voluntariness of his consent to its entry by a representative of the public defender’s office who appeared in court in place of the employed counsel expected by petitioner. Our conclusion is that what appears in the transcript is not sufficient to show petitioner “understood the consequences of his plea of guilty.” Even the statement of facts made by the

Assistant Circuit Attorney did not conclusively compel a finding of first degree murder but possibly could' have been a second degree murder situation.

The order denying the motion to vacate is reversed and the cause remanded.

All concur.


author: HOLMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Jesse Franklin COLLINS, Appellant.
    No. 51237.
    Supreme Court of Missouri, Division No. 1.
    Oct. 11, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Richard G. Altobelli, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    William H. Webster, Richard J. Shee-han, St. Louis, for appellant.
   HOLMAN, Judge.

Defendant was charged by indictment with the unlawful sale of a narcotic drug. See §§ 195.020 and 195.200. (All statutory references are to RSMo 1959, V.A.M.S.). An information, substituted for the indictment, charged prior felony convictions under the provisions of § 556.280. A jury found defendant guilty and the court fixed his punishment at fifteen years’ imprisonment.

Upon defendant’s appeal to this court we found no trial errors but, because the court failed to make a required finding (imprisonment) to show that the habitual criminal statute was applicable, we reversed and remanded the case with directions to the court- “to cause the defendant to be brought before it to hold a hearing on the issue of the applicability of the habitual criminal statute to defendant and if proved that, after being sentenced on his former conviction, he was either placed on probation, paroled, fined or imprisoned therefor, to pronounce sentence and judgment against defendant taking all proper procedural steps required therefor by law and the rules of this court but in the alternative if the habitual criminal statute be found inapplicable to- the defendant to grant him a new trial on all issues.” State v. Collins, Mo.Sup., 383 S.W.2d 747, 752.

In accordance with our mandate the court held a hearing at which the State offered (and the court admitted) a certified copy of a judgment of the District Court of the United States for the Eastern District of Missouri (Exhibit 1) which recited that Jesse Collins had been convicted upon his plea of guilty of the crimes of possession and sale of heroin, a derivative of opium, and he was sentenced (on January 18, 1951), to five years’ imprisonment on each offense with said sentences to-run concurrently. Also admitted was Exhibit 2, a certificate of the Records Control Supervisor of the Federal Detention Headquarters, New York, New York, which recited the following concerning Jesse Collins: “Sentence, five years; Court, U. S. District — Eastern Missouri; Date of sentence, January 18, 1951; When received, January 25, 1951; Expiration of sentence, August 9, 1954; Discharged, August 9, 1954.” A similar certified record, which was admitted, contained two photographs of the prisoner, Jesse Collins — one taken July 11, 1951, and the other July 21, 1954.

The State also offered the testimony of the arresting officer, Louis Schmidt, who testified that he had known Jesse Franklin Collins since 1948. He further testified as follows: “Q-. Officer Schmidt, at the time you arrested the defendant January 30, 1963, did you question him concerning the -prior convictions and prior imprisonment? A. Yes. Q. What did he say regarding that ? A. Stated that he had been arrested * * * for sale and possession of nar-cotíes, and I asked him if he served any time and he stated that he had. * * * Q. Did you question the defendant regarding whether or not he had been convicted of the offense of sale and possession? A. Yes. Q. Again, for the record, what did he say regarding conviction? A. He stated he had been convicted and served time in the penitentiary, U. S. Penitentiary. Q. And that was for what offenses? A. Sale and possession of narcotics. Q. What year was that? A. 1950.” And on cross-examination concerning the quoted admissions he stated: “Q. You did not inform him that he did not have to answer any questions then? A. I don’t recall any advice as such. Q. You did not inform him he would be entitled to a lawyer ? A. I do not recall that.”

Defendant offered no evidence. At the conclusion of the hearing the trial court found beyond a reasonable doubt that “on the 18th day of January 1951, in the United States District Court for the Eastern District of Missouri, Eastern Division, the defendant was duly convicted of the offense of illegal sale of a narcotic drug, which offense, if committed in the State of Missouri, would be punishable, under the laws of the State of Missouri, by imprisonment in the penitentiary, and in accordance with said conviction was duly sentenced by said court to imprisonment in the Federal Detention Headquarters, New York, New York, for the term of five years, and was duly imprisoned in said Federal Detention Headquarters at New York, New York, aforesaid, on January 25, 1951, in accordance with said sentence [the same findings as to the offense of possession of a narcotic drug are omitted], and imprisonment of said Jesse Collins in both the said sentences was served concurrently and said Jesse Collins was duly discharged from said Federal Detention Headquarters at New York, New York, aforesaid, on August 9, 1954, and upon lawful compliance with said sentences. * * * And the. court finds beyond a reasonable doubt in this case that Jesse Collins and Jesse Franklin Collins are one and the same person, and he was a person who was so convicted, duly sentenced on the convictions and duly imprisoned to serve, and was so imprisoned and discharged.”

After defendant’s motion for a new trial was overruled the court again sentenced defendant to imprisonment for a term of fifteen years (with allowance for all time previously served). Defendant has duly appealed from that sentence.

At the hearing defendant contended that the testimony of the officer as to the admissions of defendant concerning his prior convictions and imprisonment should not have been considered because such was in conflict with the holding in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. The trial court ruled that Escobedo did not apply because the admissions did not establish a crime but related solely to past history concerning previous convictions and imprisonment. The first contention on this appeal is that the court erred in that ruling.

In Escobedo defendant had employed counsel before his arrest. After his arrest he was interrogated by the police. His request to consult with his lawyer was denied. At the request of defendant’s mother the attorney went to the police station and his request to see defendant was denied. The police did not advise defendant of his right to remain silent. The court held that a confession obtained under those circumstances was in violation of the defendant’s constitutional rights and was not admissible. In the case at bar defendant would- have us extend the Escobedo rule by holding that no admissions may be used unless a defendant has first been advised of his right to counsel and his absolute right to remain silent. The case of People v. Dorado, Cal., 42 Cal.Rptr. 169, 398 P.2d 361, so held in excluding a confession of guilt in regard to the offense with which that defendant was subsequently charged. A contrary holding appears in State v. Scanlon, 84 N.J.Super. 427, 202 A.2d 448.

We will not expand the Escobedo ruling beyond the facts of that case. In the case before us there was no request for an attorney and defendant made no confession of guilt as to the offense charged. He merely admitted his prior convictions and imprisonment. We rule that the fact that he was not advised as to his right to counsel and his right to remain silent did not render those statements inadmissible.

The conviction, sentence, and imprisonment of Jesse Collins was proved by State’s Exhibits 1, 2, and 3. For a number of reasons hereinafter discussed defendant contends the court erred in admitting those exhibits. It is first said that there was no competent evidence to show that defendant, Jesse Franklin Collins, is the same person as the Jesse Collins referred to in the foregoing exhibits. We have held that identity of names is prima facie sufficient to establish a defendant’s identity for the purpose of showing a prior conviction. State v. Reed, Mo.Sup., 298 S.W.2d 426. In the cases under consideration the first and last names are identical in each instance. The only difference is that in the instant case the middle name of defendant was used whereas no middle name appears in the federal cases.

In addition to the similarity of names there are two items which we think were sufficient to support the trial court’s finding that defendant was the same person referred to in the exhibits. In the first place there is evidence that defendant admitted that he was convicted and imprisoned for sale and possession of narcotics at about the time the exhibits show that Jesse Collins was convicted and imprisoned for those offenses. Secondly, we note that Exhibit 3 contains two photographs of the Jesse Collins involved in the federal cases. We cannot compare those photographs with defendant because he did not appear in person in this court. However, this point was specifically raised in the trial court and the defendant and the photographs were before the trial judge. In that situation we think it may be reasonably and safely assumed that the trial judge compared the two and that he would not have made the finding that Jesse Collins and Jesse Franklin Collins were one and the same person if the photographs had not appeared to have been pictures of the defendant. We rule this point against defendant.

Defendant next contends that Exhibit I should not have been admitted because of a discrepancy in the dates relating to the authentication thereof. The attestation of the clerk is dated December 4, 1964. A certificate of Judge Regan certifying as to the fact that the person signing the certificate was the clerk is also dated December 4, 1964. However, the certificate by the clerk to the effect that Judge Regan signed the certificate and was a judge of the U. S. District Court on December 4, 1964, was dated March 4, 1964. We think the contention is without merit. The insertion of “March” instead of “December” in the foregoing certificate was obviously a typographical error. In that connection we judicially know that Judge Regan was a judge of the U. S. District Court on December 4, 1964. In the situation here presented the trial court did not err in refusing to exclude the exhibit because of the discrepancy stated.

The next point briefed is that Exhibit 1 does not disclose that defendant was convicted of offenses which, if committed in this state, would be punishable by imprisonment in the penitentiary. While the offenses are described in said exhibit in technical terms it actually states that the offenses were unlawful sale and possession of heroin, a derivative of opium. The Missouri statute, § 195.020, makes it unlawful to sell or possess “any narcotic drug, except as authorized in this law * * Section 195.200 fixes the punishment for selling a narcotic drug at imprisonment for “not less than five years nor more than life,” and up to twenty years’ imprisonment for possession of such a drug. It is true, as defendant contends, that § 195.080 contains certain exemptions relating to the sale of drugs on prescription, and the retail sale of medicinal preparations containing not more than certain designated amounts of narcotic drugs. However, § 195.180 places the burden of proving those exemptions upon the defendant. Under the circumstances here presented we rule that it was not necessary for the judgments in the federal cases to contain a specific negation of the exemptions set out in § 195.080 in order for those convictions to be considered in applying the Missouri Habitual Criminal Act.

Defendant also contends that the court erred in admitting Exhibits 2 and 3 because no proper foundation was laid for their admission. Exhibit 2 was certified by Anthony A. Euk, Records Control Supervisor, who certified that he was “the keeper of the records and office books kept in the office of the Warden,” etc. Exhibit 3 which was obtained 18 months later was certified by Howard E. Franciscus, Acting Warden, “the official custodian of the records,” etc. Both Euk and Franciscus swore to their certification before a notary public and each instrument had the seal of the Bureau of Prisons affixed thereon. It is true, as defendant contends, that these exhibits were not authenticated in the manner provided in § 1739 of 28 U.S.C.A. However, as we said in State v. Young, Mo.Sup., 366 S.W.2d 386, 388, “the federal statute does not prescribe the only basis for the admission in evidence of documents, and a state may by statute provide that in its own courts documents shall be admissible as evidence when attested or authenticated in a prescribed method which may be less formal than that required by the federal law, if such method does not exclude documents authenticated as prescribed by the federal act.” Our applicable statute is § 490.220 which provides that “[a] 11 records and exemplifications of office books, kept in any public office of the United States, or of a sister state, not appertaining to a court, shall be evidence in this state,- if attested by the keeper of said record or books, and the seal of his office, if there be a seal.” We think the exhibits in question clearly comply with the requirements of § 490.220 and we accordingly rule that the court did not err in admitting them in evidence.

During the cross-examination of Officer Schmidt defendant’s attorney brought out that the officer had reported defendant’s admissions as to prior convictions and imprisonment on an “alibi sheet” which he sent to the office of the circuit attorney. The court denied Mr. Webster’s request to examine that paper. Defendant now asserts that said ruling constituted error. He concedes that the point was not specifically raised in the motion for new trial but requests that we consider it under S.Ct. Rule 27.20(c), V.A.M.R. We have .considered the request but have concluded that the ruling was not plain error which resulted in manifest injustice and hence we will not rule the merits of the contention.

There is no merit in the contention that the court erred in finding that defendant had been convicted and imprisoned on two prior felony convictions. Defendant says it is not clear' from a reading of Exhibits 1, 2, and 3 that more than one offense was involved. A finding of- one felony is sufficient to make our Habitual Criminal Act applicable. However, the aforementioned exhibits clearly show that defendant was convicted, sentenced and imprisoned on the two felonies (charged in Counts I and II of the information)' of sale and possession of narcotics. The court was warranted in finding the facts relating to both felonies, as heretofore set out.

- The final contention is that the findings of the trial court are against the weight of the competent, credible evidence. As we have previously indicated, we have concluded that the evidence was sufficient to support a finding beyond a reasonable doubt that defendant had been convicted of two prior felonies and imprisoned thereon. We accordingly rule that the provisions of § 556.280 were properly applied in this case and hence the court did not err in fixing the punishment and resentencing the defendant rather than granting defendant a new trial on all issues.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Jefferson Davis SMITH, Appellant.
    No. 51336.
    Supreme Court of Missouri, Division No. 1.
    Oct. 11, 1965.
    Norman H. Anderson, Atty. Gen., Jefferson City, J. L. Anding, Sp. Asst. Atty. Gen., Pacific, for respondent.
    Emanuel Williams, St. Louis, for appellant.
   HOLMAN, Judge.

Defendant, Jefferson Davis Smith, was charged with and found guilty of the offenses of burglary in the second degree and stealing. The court found, as charged, that defendant had been convicted of five prior felonies and had been sentenced and imprisoned upon each of said convictions. The court fixed his punishment at imprisonment in the penitentiary for a term of six years for the burglary and five years for the stealing, the sentences to run concurrently. See §§ 560.070, 560.095, 560.110, 560.156, and 556.280 (all statutory references are to RSMo 1959, V.A.M.S.). Defendant has appealed. He has not filed a brief and we will therefore consider the contentions properly raised in his motion for new trial.

Defendant was charged with the burglary of the Cross Road Lounge which was located at 2815 Cole Street, St. Louis, Missouri. Mrs. Birdie Keesee testified that she owned the Cross Road Lounge; that she was the last to leave the premises when the place was closed on September 13, 1964, and that upon leaving she locked and secured the premises; that about 11:30 p. m. on said date she was called by a police officer and immediately went to the Lounge; that she observed that the window on the east side had been broken and the lock on the front door was “jammed” and a crowbar was lying in front of the premises; that there was blood on the window and on the sidewalk under the window; that she went inside and checked her stock and found that 83 half pints of whiskey, having a value of “about a hundred and twenty-five dollars,” were missing.

Patrolman Ora Jennings of the Canine Division of the St. Louis Police Department testified that he was patrolling the area on the date in question and at about 11:10 p. m. discovered a broken window at the Cross Road Tavern; that he and his dog entered the -building through the broken window but found no one inside; that he observed blood on the sidewalk and blood stains on various articles in the building, and that he immediately notified the district office as to his discovery.

Defendant was arrested on September 16, apparently after the police had received a “tip” indicating that he may have been involved in the aforementioned burglary. After his arrest he was taken to the district police station and questioned. Three officers were present during the -questioning as was William Keesee, husband of the owner of the Lounge. Each of-these witnesses testified at the trial. The substance of their testimony was that defendant stated that he went to the tavern with two other men whom he refused to identify; that the two others broke into the tavern and he acted as “lookout”; that he obtained a box and the men inside handed the whiskey out of the window to him and he put it in the box; that in receiving the whiskey he cut his hand on the glass in the window; that he later traded the whiskey to a man by the name of Wolfdyk for a quantity of heroin. All of these witnesses stated that defendant had a fresh cut on his right thumb and one of them pointed out the scar on defendant’s thumb at the trial.

The first assignment is that the evidence was insufficient to constitute a submissible case of either burglary or stealing. A reading of our factual statement will indicate that the contention is without merit. There was evidence to the effect that the building was broken into and entered and 83 half pints of whiskey stolen therefrom. While defendant did not enter the building, he was present and aided his confederates by acting as a lookout and in receiving the stolen whiskey as it was handed through the window. The evidence discloses that all of the elements of the offenses of burglary and stealing were present, and defendant was just as guilty of those offenses as were his associates who entered the building.

The second assignment in the motion is that the court erred in failing to give an instruction “on stealing, separate and apart from the burglary.” That contention is apparently the result of an oversight. Instruction No. 4, given by the court, submitted the offense of stealing whiskey of the value of more than fifty dollars in the event the jury found defendant not guilty of burglary. That was precisely the type of instruction defendant says should have been given. The point is disallowed.

The final assignment is that the court erred in failing to give an instruction on stealing property of a value of less than fifty dollars. The only evidence relating -to this point is that 83 half-pint bottles of whiskey were taken and the owner testified that the whiskey had a value of “about a hundred and twenty-five dollars.” Defendant says that said evidence was self-serving, “speculative, and was not definite and certain as to value.” While Mrs. Keesee did say -the value was “about” one hundred and twenty-five dollars, the testimony constituted substantial evidence which would support a finding that the whiskey was of the value of one hundred and twenty-five dollars. Since there was no evidence which would tend to show that the whiskey was worth less than $50, there was nothing in the case upon which the court could have predicated the instruction defendant says should have been given. State v. Knicker, Mo.Sup., 366 S.W.2d 400 [2]. We rule this contention adversely to defendant.

An examination of the record as required by S.Ct. Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All concur.