State v. Linzia

412 S.W.2d 116, 1967 Mo. LEXIS 995
CourtSupreme Court of Missouri
DecidedMarch 13, 1967
Docket52197
StatusPublished
Cited by17 cases

This text of 412 S.W.2d 116 (State v. Linzia) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Linzia, 412 S.W.2d 116, 1967 Mo. LEXIS 995 (Mo. 1967).

Opinion

DONNELLY, Judge.

Appellant, Lovie Linzia, Jr., was convicted of first degree robbery by means of a dangerous and deadly weapon under § 560.-120 RSMo 1959, V.A.M.S., by a jury in the Circuit Court of Jackson County, Missouri, and his punishment was assessed at imprisonment in the State Department of Corrections for a term of eighteen years. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

*118 Appellant does not question the sufficiency of the evidence. The record justifies the following brief recitation of facts: In November, 1965, John Mondaine was employed as a porter by Goldman’s Jewelry Store, 11th and Walnut Streets, Kansas City, Jackson County, Missouri. In late October, 1965, Mondaine discussed with appellant, and others, whether there was a way Mondaine “could sneak them in” the jewelry store “so they could open the safe.” On Friday evening, November 5, 1965, Mondaine let appellant and two companions into the store. They remained all night and he let them out Saturday morning. On the morning of November 10, 1965, about 8:30 a. m., Mondaine again admitted appellant and two companions through the back door of the store. Max Roth, Joe Flapan and Ronald Weinsaft, employees of the store, had entered by way of the front door. Flapan worked the combination on the vault, called to Weinsaft, and Weinsaft opened the door of the vault. When Weinsaft turned from opening the door of the vault, he observed appellant, with a gun in his hand, and two other men standing behind Flapan and Roth. Appellant hit Weinsaft “in the back of the head” and Weinsaft, Flapan and Roth were taken downstairs to the basement where their wrists and ankles were bound. Appellant, not knowing the vault had been opened, asked for a key to the vault, went upstairs, and a few minutes later left the store with his two companions. The employees untied their wrists and ankles, went back upstairs and found that two boxes of jewelry were missing from the vault. Appellant and two other men drove to Texas that afternoon and took the jewelry with them. They were apprehended in Dallas, Texas.

Appellant first asserts error in the admission of certain testimony elicited from John Mondaine. It is as follows:

“Q. Now, had they been inside the store, had you let those same three men in the store prior to or before November 10, 1965?
“MR. DUNCAN: I object to that, Your Honor, not being charged in the indictment. This man is charged with a robbery on November the 10th. Anything else would be irrelevant and immaterial and prejudicial.
“THE COURT: Overruled.
“Q. (By Mr. Stephenson) You may answer the question.
“A. Will you ask the question again?
“Q. When had you let them in the store prior to or before November 10th? A. Let’s see, I think Friday, that Friday before —it was that Friday before — it happened on Friday and it was the Friday, that following Friday.
“Q. The same three men? A. Yes, sir.
“Q. And for what purpose did you let them in on that occasion?
“A. So the robbery could take place.
“Q. For the robbery to take place, you say? A. Yes.
“Q. Did it take place that day? A. No.
“Q. Did a robbery then occur on November the 10th?
“A. Yes.

On cross-examination, Mondaine testified as follows:

“Q. Now, you say that on the Friday before this that you had let these men in to the store, is that correct ? A. Yes.
“Q. When did you let them in that time?
“A. I was supposed to get off work at 3:30 but I worked until 4:30 so they wouldn’t be in the store too long after they closed, Friday evening around 4:25.
“Q. 4:25 you let them in? A. Yes.
“Q. That was in the evening? A. Yes.
*119 “Q. Is Goldman’s open on Saturday? A. Yes.
“Q. Did you work that Saturday? A. Yes.
“Q. Did you let them out Saturday? A. Yes.
“Q. All right. Now, it is your testimony that Mr. Linzia was one of those men that was in there all night Friday night and Saturday morning? A. Yes.
“Q. All right. And it is your testimony also that there was some discussion about Mr. Linzia being able to open the safe, is that correct? A. No, it was before then.
“Q. Well, hadn’t you had a conversation in which Mr. Linzia had said, or someone had told you that Mr. Linzia could open the safe? A. Yes.
“Q. And they were in there all night Friday night and Saturday morning? A. Yes.
“Q. Is that your sworn testimony? A. Yes.
“Q. But there was no robbery that night ?
“A. No robbery.”

Appellant contends that the evidence adduced in behalf of the State was inadmissible because it constituted proof of another offense. We are of the opinion that the general rule forbidding evidence of a crime other than the crime for which the defendant is on trial is not applicable here. Generally, of course, evidence of a different crime is inadmissible. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304. But there are exceptions to the general rule. One is that where “the proof of other offenses may tend to establish * * * a common scheme or plan embracing the commission of separate similar offenses so interrelated to each other that proof of one tends to establish the other, such other offenses are widely held under these circumstances to be admissible in proof.” State v. Kornegger, 363 Mo. 968, 975, 255 S.W.2d 765, 768; 20 Am.Jur., Evidence, § 314; 22A C.J.S. Criminal Law § 688.

The evidence is inconclusive as to what happened in the jewelry store Friday night, November 5, 1965. If appellant at that time attempted to “open the safe,” the attempt was apparently unsuccessful. Perhaps this illegal entry was only preparation for the crime committed November 10, 1965. In any event, the ultimate purpose, an unlawful taking of property, was successfully consummated by robbery November 10, 1965. This Court said in State v. Harrison, Mo.Sup., 285 S.W. 83, 86: “There was a plan or scheme amounting to conspiracy, * * * which they entered into for the purpose of robbing that store, and everything they did in pursuance of that plan could be shown in the evidence. Therefore the evidence was admissible.” See also State v. Greenwade, 72 Mo. 298; State v. Garton, Mo.Sup., 371 S.W.2d 283, 287, 288; and State v. Evans, Mo.Sup., 237 S.W.2d 149, 151.

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Bluebook (online)
412 S.W.2d 116, 1967 Mo. LEXIS 995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-linzia-mo-1967.