460 S.W.2d 614 | Mo. | 1970
This is an appeal from a jury conviction of first degree robbery with a 10 year sentence imposed by the court under Sec. 556.-280, the second offender act.
The state produced witnesses from which the jury could reasonably have found that defendant, using a gun, held up the attendant, Jack Wren, at a filling station in
Defendant’s pre-trial motions to suppress the in-court identification by Wren and to compel the disclosure of any information which would aid in the preparation of defendant’s case were denied. Defendant pleaded not guilty. He testified that he did not rob the filling station; that he, his brother, and one Terry Lincoln, at about midnight, had been down on the Meramec River, south of St. Louis; they left the river sometime around or before 3:00 a. m. and drove to Wellston in St. Louis County to find defendant’s other brother, but were unsuccessful and were on their way home when stopped by the police and arrested.
Defendant’s first point is that the trial court erred in finding Sec. 556.280
Next, defendant contends the court erred in permitting the state to cross-examine defendant on his beer drinking prior to the robbery. The point is without merit, for the reason that at an earlier point in the cross-examination, when defendant was asked after he left the river to tell how he came into St. Louis and where he went, he started detailing his travels and at one place, relating about getting on the wrong street, volunteered, “I had been drinking quite a bit that night.” This was the first such mention of drinking and, in this setting, the court did not err in permitting the state to question defendant about how much beer he consumed while at the river.
The defendant’s fourth point pertains to error in overruling his motion to suppress testimony concerning the lineup and subsequent in-court identification by Wren, on the ground Wren was told in advance by the police that the person they knew committed the crime would he in the lineup, citing Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.
Defendant’s fifth point is that the court erred in overruling his motion for disclosure. The motion was for an order directing the prosecutor “to disclose to defendant’s counsel all evidence material to guilt or punishment in his files, or otherwise known to him, which is or may be favorable to defendant”. The court no doubt was of the opinion the motion was too broad and sweeping to be sustained under the present state of the Missouri law on discovery in criminal cases, State v. Coleman (Mo.Sup.) 441 S.W.2d 46; State v. Reynolds (Mo.Sup.) 422 S.W.2d 278, and State v. Swiggart (Mo.Sup.1970) 458 S.W. 2d 251. We agree.
The final point raised goes to instruction No. 4, which read: “The Court instructs the jury that you are not to consider the evidence of a former conviction of this defendant as any evidence at all of his guilt in this case; nor should you consider that, because of this former conviction, he was more liable to commit this offense, or, because of the prior conviction, he is probably guilty of this offense also. The only purpose that the former conviction has in this case is to show the fact of a former conviction of defendant for the purpose of testing his credibility as a witness and not as affirmative proof of the guilt of the defendant.”
Defendant contends the instruction singled out defendant’s credibility (defendant testified and on direct examination admitted the plea of guilty to the assaulting
Judgment affirmed.
. All statutory references are to RSMo 1969, V.A.M.S.
. Rule 27.11, V.A.M.R., requires the clerk to enter the judgment and sentence on the minutes “stating briefly the offense for which such conviction shall have been had.”
. No claim is made on this appeal of absence of counsel at the lineup. At the hearing before the court on the motion to suppress, defendant testified he was not advised of his right to counsel at the lineup, while two detectives testified to the contrary and that defendant said he did not want counsel.