Opinion
No. 41529.
October 10, 1949.
Defendant's conviction of robbery in the first degree is affirmed. There was a submissible case, including identification by the victim. Testimony as to identification statements made in defendant's presence was not erroneous. Defendant's shirt was properly introduced. Reference in the jury argument to prior convictions was proper, defendant being charged under the habitual criminal act. An instruction on common assault was not required.
1. CRIMINAL LAW: Robbery: Submissible Case. There was a submissible case of robbery, including identification of defendant by his victim.
2. CRIMINAL LAW: Statement at Time of Identification: Insufficient Assignment: No Error. There was an insufficient assignment as to testimony by a police officer as to what the prosecuting witness said in the presence of defendant as to his identify. And there was no error.
3. CRIMINAL LAW: Evidence: Shirt as Exhibit. A flowered sport shirt found in defendant's home and identified as being of the same type as that worn at the scene of the robbery was properly introduced in evidence.
4. CRIMINAL LAW: Argument of Prosecutor: Reference to Previous Convictions Proper. It was proper for the prosecuting attorney to refer to the evidence of previous convictions in his argument to the jury, defendant having been charged under the habitual criminal act.
5. CRIMINAL LAW: Instruction on Common Assault Not Required. An instruction on common assault was not offered or requested, and there was no evidence upon which to base such an instruction.
Appeal from Circuit Court of City of St. Louis; Hon. William S. Connor, Judge.
Emanuel Williams for appellant.
J.E. Taylor, Attorney General, and David Donnelly, Assistant Attorney General, for respondent.
(1) The verdict is in compliance with the law and is supported by substantial evidence. The court did not err in overruling appellant's demurrer at the close of the State's case and at the close of the whole case. State v. Allen, 342 Mo. 1043, 119 S.W.2d 304; State v. Gregory, 339 Mo. 133, 96 S.W.2d 47; State v. Hancock, 340 Mo. 918, 104 S.W.2d 241; State v. Shuls, 329 Mo. 245, 44 S.W.2d 94; State v. McDonald, 64 S.W.2d 247; State v. Dickhout, 324 Mo. 1194, 26 S.W.2d 937; State v. Lettrell, 39 S.W.2d 556; State v. Reynolds, 345 Mo. 79, 131 S.W.2d 552; State v. Murphy, 345 Mo. 358, 133 S.W.2d 398; State v. Taylor, 323 Mo. 15, 18 S.W.2d 474; State v. Maness, 19 S.W.2d 628; State v. Short, 337 Mo. 1061, 87 S.W.2d 1031; State v. Faudi, 11 S.W.2d 1014. (2) Appellant's assignment of error No. 3 is without merit. Sec. 4125, R.S. 1939; State v. Page, 186 S.W.2d 503; State v. Dobbins, 351 Mo. 796, 174 S.W.2d 171; State v. Brown, 165 S.W.2d 420; State v. Hall, 102 S.W.2d 878; State v. Wood, 355 Mo. 1008, 199 S.W.2d 396; State v. Williams, 292 S.W. 19; State v. Thomas, 82 S.W.2d 885; State v. Levitt, 278 S.W. 312, 213 S.W. 108; 16 C.J. Criminal Law, sec. 1262, p. 634. (3) The shirt in question was properly admitted in evidence and the court did not err in refusing to declare a mistrial. State v. Barr, 340 Mo. 738, 102 S.W.2d 629; State v. Johnson, 289 S.W. 789; State v. Bease, 133 S.W.2d 409; State v. Kaplan, 16 S.W.2d 35; C.J., Criminal Law, sec. 1053, p. 549; State v. Evans, 334 Mo. 914, 68 S.W.2d 705. (4) The court did not err in refusing to declare a mistrial. Portman v. U.S., 34 F.2d 406; State v. Cohen, 100 S.W.2d 544; State v. Sinovich, 46 S.W.2d 877, 329 Mo. 909; State v. Lynn, 23 S.W.2d 139; State v. Nichols, 327 Mo. 1237, 39 S.W.2d 777; State v. Graves, 352 Mo. 1102, 182 S.W.2d 46; State v. Willhite, 159 S.W.2d 768; State v. Smith, 355 Mo. 59, 194 S.W.2d 905. (5) There was no error in the court failing to give an instruction on common assault. State v. Reich, 293 Mo. 415, 239 S.W. 835; State v. Bagley, 339 Mo. 215, 96 S.W.2d 331; State v. Campbell, 84 S.W.2d 618; State v. Hampton, 172 S.W.2d 1; State v. Robb, 90 Mo. 30, 2 S.W. 1; State v. Henggeler, 312 Mo. 15, 278 S.W. 743; State v. Moore, 106 Mo. 480; State v. Harris, 199 Mo. 716, 98 S.W. 457; State v. Lasky, 133 S.W.2d 334; State v. Nieuhaus, 217 Mo. 332, 117 S.W. 73; State v. Barton, 142 Mo. 450, 44 S.W. 239; State v. Duncan, 142 Mo. 456, 44 S.W. 263.
In August, 1947, an information was filed in the circuit court of the City of St. Louis charging defendant and another with robbery in the first degree. Defendant prayed for and was granted a severance. Upon a trial the jury was unable to reach a verdict. In January, 1948, by leave of court an amended information was filed charging defendant with robbery in the first degree with prior convictions of felonies. A trial was had. The jury returned a verdict of guilty and assessed defendant's punishment at imprisonment in the State penitentiary for a term of fifteen years. After judgment and sentence defendant appealed.
Evidence introduced on the part of the State tended to prove the following facts. On the morning of June 2, 1947, between ten and eleven o'clock, Thomas Stover went into a tavern to use the telephone. Defendant followed him from the front door to the telephone booth in the rear of the tavern and then followed him out the front door. Stover visited several business places and paid debts. He returned to the tavern about four o'clock in the afternoon and saw defendant there. Stover left and went across the street to purchase cigarettes. He then attempted to board a streetcar, but was prevented by defendant who pushed him away and demanded money to buy a drink. Stover gave defendant fifty cents and walked away. Defendant passed him, went into an alley and came out with something in his hand "about the size of half a brick." Defendant struck Stover with some object and beat him until he was unconscious. A short time later the police took Stover to a hospital, still unconscious and bleeding from a wound in his head. His skull had been fractured. When he regained consciousness he gave a description of his assailant and said he was wearing a flowered sport shirt. Defendant was arrested and taken to the hospital where Stover identified him as the man who struck him, but said he had on a different kind of shirt. The police took defendant to his home where he gave them a flowered sport shirt which Stover later identified as the kind of shirt defendant was wearing at the time of the assault. At the trial Stover again identified defendant as his assailant. When Stover was taken to the hospital he had only twenty-four cents and some keys in his pockets. He testified that when he went to the telephone in the tavern on the morning of June 2, 1947, he had about $109.00 in his pocket and that, after paying bills, he had left about $44.00 when assaulted.
The State offered evidence of three previous convictions of defendant, for second degree murder, larceny and robbery.
Defendant offered no evidence in the trial court and has filed no brief in this court. His motion for new trial contains eight assignments of claimed error.
Assignments 1, 2, and 6 relate to the sufficiency of the evidence. We hold that there was substantial evidence to sustain the verdict and its credibility was for the jury. [State v. Allen, 342 Mo. 1043, 119 S.W.2d 304, l.c. 307.]
There is no merit in Assignment 3 "that the court erred in overruling the defendant's objection to testimony by the police officer as to what the prosecuting witness said in the presence of the defendant as to his identity." The assignment is too general to present anything for review. More than one police officer testified to being present when Stover identified defendant. The assignment does not point out which officer nor what testimony is meant. Even if it did the assignment would be without merit. [State v. Thomas, (Mo.) 82 S.W.2d 885.]
The court did not err in admitting the shirt in evidence. [Assignment 4.] [State v. Evans, 334 Mo. 914, 68 S.W.2d 705.]
[481] The court did not err in refusing to declare a mistrial because of references made by the prosecuting attorney in his closing argument to the previous convictions of defendant. [Assignments 5 and 8.] It was within his province to refer to the evidence of previous convictions, not to establish the guilt of defendant of the charge on trial, but to affect the punishment to be assessed. At any rate the jury did not convict defendant under the Habitual Criminal Act, which would have required the assessment of the maximum penalty. [Sections 4453 and 4854, R.S. Mo. 1939, Mo. R.S.A.]
Defendant did not offer or request an instruction on common assault. [Assignment 7.] Even so, there was no evidence upon which to base such an instruction.
Defendant's counsel vigorously contested the case throughout. An examination of the transcript shows that defendant was given a fair trial and no prejudicial error is shown.
The judgment is affirmed. All concur.