*1 аlia, Shepard, inter with “intent to steal”. this Did aid in its commis- murder? he burglary on second appears instruction sion?” Thus nowhere The guilty if had robbery had defendant question whether or not a mitted verdict any felony, The intent “to commit occurred was a real issue case. clearly Defendant contеnded stealing in this demon- therein”. entire record case to commit with intent charged strates that the issue was whether or was not steal only with intent to felony” but participated “some evidence therein, was no and there murder. other commit a crime attempt to which these circumstances hold Under we inferred. be than to steal could defined rob- adequately instruction No. 12 bery affirmed. giving judgment and the of the same does not constitute reversible error this case. concur. Judges All of complaint The second defendant has to 12 that
instruction it was error to submit
the case to “felony under the mur-
der for doctrine” the reason the infor-
mation, it charged while degree first mur-
der, charge did not said offense was com-
mitted reason of a homicide committed perpetration robbery. of a Missouri, Respondent,
STATE The instant information charged defendant with murder in the first degree RICHARDS, Appellant. Harrison in conventional form. It is well settled that No. 55721. a prosecution for first degree murder in the perpetration felonies enumerated Missouri, Supreme Court 559.010 § maintained under a 1. Division No. charge in the usual form, and common April in the instant case willful, of a deliberate and premeditated killing. Smith, Rehearing to Court Transfer Motion or to for May 10, 1971. En Banc Denied Sykes, State Copeland, 140, 71 Mo.
Defendant acknowledges the foregoing is law this state urges but this court
to re-evaluate the citing rule the Sixth
Amendment, United Constitution, States
and Art. 18(a), Constitution of Mis- § 1945,V.A.M.S.,
souri both of provide
that the accused shall right have the to be
informed of the nature and cause
accusation, in light of this court’s hold-
ing in Shepard, Mo., Shepard is distinguishable its It was a prosecution attempted
facts.
burglary degree. second An element
offense is an intent “to steal or commit
crime charged therein.” The information *2 trial, separate
Upon jury, by a Harrison Richards was convicted impris- punishment at life was assessed onment, judgment and sentence 559.030, 559.010, accordingly. rendered §§ *3 V.A.M.S. tacitly concedes the sufficien- At
cy support the of evidence to verdict. m., April p. approximately 10:30 Hamilton, Body, and Izetta Paul John others, together Johnson, (Babe) Ignatius bartender customers were Bar at DiManuele Pete DiManuele’s Easton, Louis, Three Missouri. St. bar, entered the went young Negro males p. room, left. the rest and Around m., again en- young the men same three bar, а to the tered One went tavern. entrance, third by stood and the second All went toward the of the bar. back pistols, present three drew informed all holdup. keep One still and that this was bar removed jumped robber over and money another register; from cash and, money Body; and took from Johnson by one although her purse was examined robbers, Iz- from nothing was taken gun etta A also taken was Hamilton. Ig- from the bar. the men struck One of be- pushed natius DiManuele and second hind the bar. He was struck a time, his As causing him fall to knees. left, three turned and shot robbers one twice, going one shоt DiManuele Mr. foot, through into left the other his identified lower chest. Defendant was Ignatius the robber fired shots. who the hospital taken to' where DiManuele was Gen., Danforth, Atty. E. C. Gene John 1,May m., he died at 12:30 a. Gen., Voigts, Atty. First Asst. Jefferson gunshot wound in his chest. City, for respondent. 3, 1969, May Harrison Rich- On David Wells, Ulmer, St. David W. David F. Al- cоmpany ards was arrested Louis, for appellant. Smith, they placed in len Edward and were lineup Negroes, young with four other including Stokes. Winford LaVern HIGGINS, Commissioner. Hamilton, lineup separately by was viewed Richards, Smith, defendant, Body, Johnson, Allen Edward Harrison and and Smith, LaVern identified or more Winford Stokes Stokes were one murder, Igna- degree, indicted for first of the witnesses as the three robbers. April 30-May un- tius DiManuele Stokes had been arrested while seated steering der the wheel of an automobile in nied impartial him a fair jury trial passen- striking one K. C. Robberson prospective for сause jurors who arrest, ger. gun tak- could imposition not consider of the death Just bar, en from together clip, with loaded penalty. The contention is without merit right-hand was thrown from the Illinois, side Witherspoon, because supra, has the automobile. application when the does not аs
sess the penalty. Bumper death v. North Carolina, 391 U.S. trial, defendant Prior to moved un Pollard, Mo., 447 S. successfully inspection copies Franklin, W.2d 251[2-5]; State v. grand jury testimony in connection with Quinn, indictment; assignment and the first 815[1]. goes error to the denial of his motion. *4 Appellant grand jury argues that if min 7, 8, State’s Exhibits and 9 were рrose utes to a defendant unavailable gun, clip, and shells taken from Di indictment, cuted he is at a disadvan Manuele’s during Bar the robbery and tage compared prose when to a defendant shooting, found when thrown from a car who can cuted information attend his occupied by Ap Winford LaVern Stokes. preliminary hearing and have transcribed pellant charges their that admission into adduced; testimony transcript there a that error, evidence was asserting they ir were grand testimony jury of would enable him relevant, immaterial, prejudicial, and not any discrepancies become be to aware of connected to disputed defendant. It is not grand testimony, deposition jury tween tes gun, condition, that the in loaded was tak timony, witness; testimony and trial of a en during and shooting, and 24.24, and that Criminal Rule V.A.M.R. was thus admissible evidence. prevent not a matter should as оf Gerberding, Mo., 272 S.W.2d Such is right portions from pertinent access to of the case even if the item be not taken di jury prepa grand testimony to aid him rectly from if it be taken from discovery. purposes ration and for of the possession coconspirator, of his Anderson, 384 and supporting The and same contentions ar Winford LaVern Stokes was identified as guments rejected were and advanced robbers, Price, Mo., one of the 1970, November, late as State Mc S.W.2d 608. Caine, 618, ; 620-621 [1-6] appear made to been and reason has Similarly, appellant complains of position court change to there admission into of evidence State’s Exhibits one discussed. cites case not 11, 12, 13, shirt, and apron, and under States, considered, Dennis v. United by Ignatius shirt “allegedly” Di worn 1840, 855, S.Ct. death, asserting Manuele at of the time applicable but it standards deals with they sufficiently were identified nоt and Federal Rules Criminal under of Procedure were purpose not utilized for for which does that suggest and not Missouri’s Rule they shirt, apron, were The offered. any 24.24, supra, way is in unconstitu undershirt hospital at the recovered Tackett, tional. See State v. N.M. body, they from deceased’s showеd Anno: 432 P.2d Accused’s Right such, they blood-stained bullet holes. As Inspection to of Minutes State Grand bore on the and fact of a nature bullet Jury, 20 A.L.R.3d wound, and were thus material. State Evans, Mo., Citing Witherspoon Illinois, ap Next is complaint a that the court se- complains pellant next that the court de- verely limited and restricted the nature and Another of defendant’s unsuccess opening counsel’s statement. Ex- scope of pretrial fa ful motions was one to opening statement on be- disclose amination including tangible and in vorable evidence of the defendant shows counsel half by tangible going punish or guilt evidence to emphasized to the that statements ment, evidence, ex impeachment evi- state’s were not to be considered counsel defendant, credibility dence; only comes from wit- oneration of or that evidence The ; is evi- state’s mоtion was sus the indictment not witnesses. nesses dence; require not to tained to disclosure of material that defendant does have be favor on the state’s evidence known state to prove thing rely but may question prove case; that the burden of able the defendant failure guilt punishmеnt is otherwise state; that defendant and was proof is on the innocence; complaint court The that the presumption clothed overruled. explain why he failed to direct to reveal evidence that defendant wants to impeach or state’s guilty possibly not have cоm- which would discredit could the crime There were nu- charged. mitted evidence. objections prosecuting by the attor- merous only respect to demonstration with ney arguing to counsel’s the existence of such evidence is going were sustained as attorney in statement of the prоsecuting some of overruled to which were response inquiry the court’s
mit
stated.
mention of the matters
*5
the de-
knew of no evidence favorable to
respects
the
mentioned
fendant in
of
permitted
Counsel
to
should
by the
defense motion. There was
way
general
inform the
the
of
showing
suppression
existing evi-
of
of
it, Hays
nature of the
before
v.
action
play
of
bring
rulings
dence to
into
the
Mo.,
Co.,
Missouri
Pac. R.
Brady
Maryland,
v.
and Giles
control
is a matter
arguments
but
Maryland,
v.
386 U.S.
court,
the trial
within the discretion of
to
fail
737. Such circumstances
Arrington, Mo.,
curred. In such Wade, Moore, upon” “based United Mo., States v. reversible error. State S.W.2d 60. it lineup
He
that
concedes
to which
lineup
preindictmerit
was directed was
charges the court erred
that,
such
United States
when the
failing to declare a
mistrial
Wade, supra,
appliсation.
has no
attorney on two occasions
prosecuting
Walters, Mo.,
upon either origin of point plaint independent has оf a lack of Accordingly, the for mistrial. identifications, suf the witnesses’ in-court preserved review. not been Williams, Mo., say fice to each that record shows telling a “dam lie on con- witness identifying to have been witnesses Johnson witness, companions swung me” coat at the by fronted defendant and away; and causing to back shooting, the witness course of sug- persons sympathy that with defendant suspect and that none of them had a their viewing “slamming” gested to them to their courtroom were Clemmons, following lineup. hands on the 460 S.W. benches Johnson’s testimony. Subsequent interrogation of de- DeLuca, 2d that he was [2], fendant the court showed lawyer, and that
not under control of his atmosphere. In he critical of the trial was In a second attack on the voir dire circumstances, guil- such the court was jurors, appellant examination of contends Illinois v. ty of an abuse of discretion. erroneously was respect restricted with Allen, supra. questions. to individual The record shows inquired the court generally of all ve charge Next niremen; propounded gener that the state permitted persuade to Allen Edward veniremen, al questions per to all and was testify Smith not to of defend on behalf question mitted to individually all who re is that state’s counsel ant. sponded general questions; that defend testi perjury threatened Smith with if he propounded ant general questions to all ve favorably fied Allen Ed defendant. niremen permitted specif and was to make ward de inquiries jointly ic Smith was indicted with responded general of all who and, severance, upon questions; fendant his own and that defendant asked indi pleaded Contrary guilty accessory. as an questions fifty vidual jurors. Ex assertion, appellant’s appears jurors amination of is another trial facet produced, court had asked the Smith but controlled the discretion trial public advise him judge, defender’s office to and the foregoing circumstances *6 testi rights permitting him to an demonstrative of abuse of discre consultation, fy. Following such the wit Nelson, Mo., tion. State v. 459 S.W.2d testify. ness declined to record Such 327. improper shows no influence Appellant complains that the court erred People Cooper, or the 268 Cal. court. placed in having during in handcuffs 34, 608; People App.2d Cal.Rptr. 73 trial. Witt, 79; 98 Cal.App.2d 324 P.2d 159 449. Witnesses §
C.J.S. upon The matter of restraints Finally, appellant claims the court erred an judge’s accused is also within the dis closing in allowing argument the state in cretion, and the court order restraints to mention that addresses of state’s wit- necessary when to maintain order and se nesses were not elicited for rea- obvious curity in the courtroom. v. Mс sons; age to ask the what consider Ginnis, Mo., 715; 441 S.W.2d in group most crime commits the St. Cox, Mo., 352 S.W.2d v. Al Illinois Louis; photographs to waive unadmitted len, U.S. 90 S.Ct. L.Ed.2d objections jury. before the There were no trial, requested 353. Prior to counsel addresses to the reference to witnesses’ permit court to defendаnt in the courtroom consequently, no issue photographs; restraints, without and the court stated it preserved has been for review. State would not order defendant un handcuffed Porter, Mo., 458 S.W.2d Following less created a disturbance. witness, the testimony first state’s young men as an
Johnson, Following The reference to recess was called. recess, group committed much of age testimony was taken from two appel- crime in Louis was in rebuttal deputies courtroom accused St. speed up administra- may very de- ant referring to well closing argument lant’s likely to such, is justice in Missоuri. It tion “boy.” innocent As fendant cases, disputed speedier trials the court’s result retaliatory within the cas- pleas or dismissals and more Tiedt, Mo. discretion. dispute. Cusumano, really genuine es where affirmed. Judgment WELBORN, CC., concur.
HOUSER Rose MORRIS, Appellant, PER CURIAM: HIGGINS, C., opinion foregoing Browne, L. and Paul SHELL OIL COMPANY opinion court. adopted as the Heigold, Browne, J. Farrell H. C. Gregory Trustees Browne, Statutory F. Company, Respondents. Oil Independent BARDGETT, JJ., con- HOLMAN cur. No. 54526. Missouri, Supreme Court of SEILER, sep- J., in result in P. concurs Division 1.No. opinion filed.
arate April 12, 1971. Motion SEILER, Court’s Own Presiding (concurring As Modified Judge May 10, 1971. result). Rehearing to Court оr to Transfer Motion for Although I concur in the result reached May 10, Bn Bane Denied opinion in the main under the facts of this agree am unable to I that the Wade- (United Wade, Gilbert rules States v. California, Gilbert v. limited 1178) application
in their lineups occurring *7 indictment,
after assuming point
be resolved at all con- view of counsel’s my view,
cession. In the Wade-Gilbert limited,
rules are not so for the reasons People
set forth in Fowler, 1 Cal.3d Cal.Rptr. P.2d
Also, I opinion am the that we should deny
not continue to discov-
ery in criminal cases (the practical effect decisions), our while continuing to
mit the by way state to make discovery grand jury proceedings regularly as is areas,
done in some leaving it to the
prosecutor to decide whether there
favorable evidence known to the state
which should disclosed to defendant. discovery permitted
Reasonable defend-