Opinion
No. 43052.
May 12, 1952.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, ELMO B. HUNTER, J.
Sheldon P. Sandler, Kansas City, for appellant.
J.E. Taylor, Atty. Gen., Jack Fleischaker, Asst. Atty. Gen., for respondent.
Upon a trial before a jury defendant Nelson Johnson was convicted of robbery in the first degree. In accordance with the jury's verdict he was sentenced to five years imprisonment in the state penitentiary. After his motion for new trial had been overruled he appealed here and filed his bill of exceptions. He has filed no brief in this court. Upon this appeal we therefore consider the assignments made in the defendant's motion for new trial and examine the record proper.
From the testimony introduced upon the trial the jury could have found: That early on Thanksgiving morning, 1950, one McKinzey, night manager and bartender at The Peanut Bar, 5,000 Main Street, Kansas City, Missouri, left the premises by the front door and locked it; he was then accompanied by Mineola Hayes and Herman Brooks, both of whom were also employees of the Bar; that they then walked to McKinzey's car which was parked near an alley behind the Bar; as McKinzey was unlocking his car three men (one of whom was defendant) stepped from behind some nearby bushes, held their guns upon the three employees, and one of the three armed men said, "This is a hold-up", and that they wanted the money inside the Peanut Bar. Brooks ran but was caught by one of the armed men and returned to the group;
Two of the armed men compelled McKinzey to go with them to the front door of the Bar, open it, and the three men then entered the Bar. Brooks, Mrs. Hayes and the third armed man were then admitted into the building through the rear door. While a gun was held upon him McKinzey was ordered to and did open a larger safe from which $2,000.00 was taken by the armed men; and McKinzey was then compelled to open a smaller safe behind the bar from which $80.00 or $90.00 was taken. During the entire hold-up Mrs. Hayes and Brooks and McKinzey were always held at the point of the guns. After McKinzey had unlocked the two safes and the money had been taken, McKinzey was locked in the "walk-in cooler". Brooks and Mrs. Hayes were then forced to lie on the floor. After cautioning their victims to remain quiet, the three armed men left by the rear door.
Defendant Johnson was arrested in Texas on March 11, 1951. He was identified both before and at the trial by both McKinzey and by Mrs. Mineola Hayes. Both were cross-examined at great length with respect to their identification of defendant. The defense was an alibi.
The defendant's motion for new trial makes the assignments, (1) that the verdict was against the weight of the evidence and contrary to the law and the evidence, (2) that upon all the evidence the trial court should have directed the jury to return a verdict of not guilty, (3) that the trial court erred in admitting the testimony of Officer Haupt as to certain statements made to Haupt by the accused, (4) that the trial court erred in permitting certain cross-examination of defendant's alibi witnesses, and (5) that the court erred in permitting certain argument made by the state's counsel in his closing argument to the jury.
The assignments in defendant's motion for new trial that the jury's verdict was against the weight of the evidence and against the law and the evidence does not comply with the statute and presents nothing for our consideration. Section 547.030 RSMo 1949, V.A.M.S., State v. Courtney, 356 Mo. 531, 202 S.W.2d 72; State v. Bell, 359 Mo. 785, 223 S.W.2d 469.
Defendant's assignments 3 and 4 in his new trial motion that the state's evidence was not sufficient to warrant the submission of the case to the jury is without any merit whatever. The above set out testimony of the witnesses McKinzey and Hayes clearly establish that defendant was one of three men who drew and held guns on McKinzey and the other two employees of The Peanut Bar, that under threats that they were "going to blow my brains out" they forced McKinzey under fear of death to go to the front of the building, disconnect the burglar alarm, unlock the door and unlock the safes from which they took $2090.00. Defendant was identified as a participant in that armed robbery. The evidence was sufficient in all respects to establish every element of the crime of robbery in the first degree, and from that evidence the jury were justified in the verdict of conviction. State v. Preston, Mo.Sup., 184 S.W.2d 1015; State v. Kaner, 338 Mo. 972, 93 S.W.2d 671; State v. Blackmore, 327 Mo. 708, 38 S.W.2d 32, 34.
It is next contended that the court erred in admitting certain testimony of Officer Haupt as to statements made by accused. Examination of the record of the testimony of the officer discloses that, as to the particular matter in question, the question asked was a proper one. Defendant interposed no objection thereto. The answer of the witness disclosed that when the officer was returning the defendant from Texas to Kansas City that defendant stated that he had left Kansas City on November 29, 1950, and had had an automobile wreck at Wheaton, Illinois. Defendant's counsel merely said to the court "Your Honor, this has no bearing whatever on this alleged criminal * * * I see no bearing whatever on any of the issues in this case." We see nothing prejudicial in the answer of the witness. If there had been, there was neither objection thereto nor any motion to strike out. State v. Demaggio, Mo.Sup., 152 S.W.2d 71; State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877. The contention made has no merit whatever.
Defendant's next assignment concerns certain cross-examination of Loveta Ann Nicholson and Mary Sawyer, whose testimony tended to support the alibi testimony given by defendant. The matter here complained of went merely to inquiry by the prosecuting attorney as to whether the two girls had testified upon defendant's preliminary hearing. Each witness stated she had not there testified. As to that particular question asked of each witness no objection was made. After the answer of the witness counsel for defendant merely called attention to it by making the statement that no unfavorable inference could be drawn from the fact that the two girls had not testified at the preliminary hearing. No timely objection was made, and no motion to strike or disregard the evidence was made. In any event, it goes only to the scope of the cross-examination, which, as to these witnesses, was discretionary with the trial court. The record presents no question for our determination, and the assignment has no merit whatever.
Defendant also assigns in his new trial motion that the prosecuting attorney, in his closing argument, was permitted "to prejudice and inflame the jury." Examination of the entire argument of state's counsel, reported in full in the bill of exceptions before us, discloses no improper, prejudicial or inflammatory argument. And at no time during the entire argument of the state's counsel, or thereafter, did defendant's counsel make so much as a single interruption or objection to anything that was said by the prosecuting attorney. There is nothing before us to review.
We have examined the record proper. The information, verdict and judgment are in proper form and sufficient. The jury assessed the minimum punishment provided by the statute. Defendant was granted allocution. The judgment of the circuit court is affirmed. It is so ordered.
All concur.