Opinion
July 3, 1931.
1. ROBBERY: Charge in Different Ways: Motion to Quash: Election. It is permissible to charge robbery in the first degree in the different ways by which under the statute (Sec. 4058, R.S. 1929) the offense may be committed, and if the evidence tends to show that the robbery was accomplished in the one way or the other charged, a case is made for the jury, and it is not error to overrule a motion to quash or a motion to elect.
2. EVIDENCE: Identification of Defendants: I Think. The cashier having testified that he thought the defendants were the men who robbed the bank, and the answer having been excluded, his then answer that he knew that the defendants were the robbers was positive and direct and unobjectionable.
3. TRIAL: Action of Prosecuting Attorney: Rebuke. Where objections to the action of the prosecuting attorney during the progress of the trial were in most instances sustained and no rebuke was asked, neither his action nor the failure of the court to rebuke him is for consideration in the appellate court.
4. EVIDENCE: Post Card: Hearsay. A brother having testified that he received a post card from defendant postmarked Cleveland, Ohio, with the date the bank was robbed, it was not proper to permit him to say what was written on the post card, nor was the card itself competent evidence. All that was competent was the fact that the witness received the post card. What was written on it, and the post card itself, were pure hearsay.
5. EVIDENCE: Untimely Objection. The court cannot be convicted of error for permitting a witness to answer questions to which no objection was timely made. Where the witness on cross-examination was asked numerous questions and answered them all, and then for the first time defendant objected, making no motion or request that the court exclude from the consideration of the jury the evidence already in, the objection came too late.
6. ____: Cross-Examination: Credibility. Great latitude is allowed on the cross-examination of a witness. Testimony of the father of defendant, elicited on cross-examination, that he made no effort to locate his son after he learned that the officers wanted him for robbery, affected the credibility of the witness, and was not improper.
7. ____: Contents of Letter. Questions asked one of the defendants pertaining to the contents of a letter in the handwriting of the other, postmarked Los Angeles, California, there being no showing that the letter was lost or inaccessible and no mention of its date, and nothing to indicate that it would be relative to any issue, are properly excluded; and particularly was there no error where there was no offer of proof.
8. JURY: Panel: Thirty: Robbery. The jury is not authorized to inflict the death penalty under an information charging only robbery in the first degree, and where it charges only robbery in the first degree, not even charging that the robbery was committed by means of dangerous and deadly weapons, the defendants are not entitled to a panel of thirty qualified men from which to select the jury.
9. ARGUMENT TO JURY: Reprimand: Discretion. Where an argument to the jury is pronounced improper and the jury directed to disregard it, the court has a discretion to refuse to reprimand counsel for making it.
10. ____: Manufacturing Testimony. Where counsel for defendant has objected that counsel for the State has said that counsel for the defendant and his secretary could go behind closed doors and make any kind of testimony, and the record did not show that counsel had made any such statement, and the court, nevertheless, instructed counsel not to make prejudicial arguments, there was no error.
11. ____: Discharge of Jury: Discretion. Three men engaged in robbing a bank, and two of them were being tried, and counsel for defendants objected when the prosecuting attorney mentioned the third as the poor fellow who killed himself and his sweetheart and the defendants as laying the blame on him for the robbery of the bank. The court referred to the remark as made in the opening statement, instructed the jury to disregard it, and admonished counsel for the State to avoid prejudicial arguments. Held, that it was within the discretion of the court to refuse to discharge the jury.
12. ____: Fugitives from Justice: Question for Jury. Objection was made by counsel for defendants to a statement by the prosecuting attorney, in his argument to the jury, that for a year or more the defendants, after the robbery of the bank, were fugitives from justice. The evidence showed that they left Missouri as hurriedly as they could after the robbery, and that it was notorious and charged in the newspapers that they were thought to have committed the crime. They were found in Los Angeles a year afterwards and were there arrested. The court, in overruling the objection, announced that whether defendants were fugitives from justice was a question for the jury. Held, no error.
13. ____: For Defendants: Exclusion: Impeachment. Counsel for the defendants having stated, in his closing argument to the jury, that if there was anything wrong with these defendants and their witnesses "the State of Missouri should have witnesses here to show it," it was not error to sustain an objection of the State that the law did not permit the State to impeach the defendant unless he took the witness stand.
14. INSTRUCTION: Omission of Defense: Alibi. An omission from the State's instruction of the theory of the defense is not error, where the only defense is an alibi, and another instruction given fully and properly directs the jury in regard to alibi.
15. ____: Reasonable Doubt: Applicable to Both Defendants. An instruction on reasonable doubt in the usual form, and closing with the words: "If upon consideration of all the evidence you have a reasonable doubt of a defendant's guilt you should acquit such defendant," meant either of the two defendants in regard to whose guilt the jury entertained a reasonable doubt, either or both, and an objection that it did not distinguish between them is without merit; and particularly so, where defendants offered no instruction making more specific the direction.
16. ____: Alibi: Evidence Means All Evidence. The instruction on alibi telling the jury that "if the evidence leaves in your minds a reasonable doubt as to the presence of said defendants, or either of them, at the place where the offense was committed," meant "upon consideration of all the evidence." The evidence means all or any of the evidence which can bear upon the issue.
17. ____: Depositions: Collateral Matter. The weight and value to be given to depositions is a collateral matter, and if defendants desire a separate instruction on the subject they should ask for it.
18. NEW TRIAL: Newly Discovered Evidence. It is not error to refuse a new trial on the ground of newly discovered evidence where all of it is either cumulative or hearsay or otherwise incompetent. And particularly so, where the absent witnesses were at all times accessible to defendants and lied about what they knew or concealed their knowledge, and no attempt to find out what they knew was made, and no sufficient diligence is shown.
Appeal from Butler Circuit Court. — Hon. Charles L. Ferguson, Judge.
AFFIRMED.
Ralph E. Bailey and M.G. Gresham for appellants.
(1) Where there is an absence of substantial evidence to sustain a conviction, the question of guilt is one of law. The court should have granted a new trial. State v. Base, 251 Mo. 107. The evidence must create more than a suspicion of guilt, however strong. State v. Wheaton, 221 S.W. 26; State v. Welton, 225 S.W. 965; State v. Remley, 237 S.W. 489; State v. Thompson, 238 S.W. 115; State v. Bowman, 243 S.W. 110; State v. Higgs, 259 S.W. 454; State v. Ross, 300 S.W. 717. Courts and juries are not limited, in searching for the truth, to mere words of the witness. State v. Draughn, 140 Mo. App. 293; State v. Cannon, 232 Mo. 205. (2) The verdict was based upon the instructions given by the court on robbery in the second degree, but the defendants were charged with putting Irvin Waller in the fear of immediate injury to his person with a dangerous and deadly weapon and such charge cannot support a conviction for robbery in the second degree. The information seems to be a double-barrel proposition attempting to charge both first and second degree robbery and should have been made more definite and certain, or quashed. State v. Pitts, 57 Mo. 85; State v. Branon, 53 Mo. 244; State v. Smith, 119 Mo. 439; State v. Jenkins, 36 Mo. 372. There are two ways under the statute in which robbery in the first degree may be committed; one by feloniously taking the property of another from his person, or in his presence and against his will by violence to his person, and the other by putting him in fear of some immediate injury to his person; and it is better pleading when it is desired to charge that the robbery was committed in both ways, to state the different allegations in separate counts. But if both ways are charged together in one count conjunctively, by the use of the word "and" where the statutes use "or," and no motion to quash is made, it is too late to raise the objection in the motion in arrest or on appeal. 209 Mo. 280: 149 Mo. 395. (3) The court erred in permitting the attorney for the State, after witness, Irvin Waller, cashier, had repeatedly said. "I think" and the court had sustained objections to his thinking and ruled that same be stricken out, and after his identification had failed, to lead and suggest and insist until said Irvin Waller was induced to make identification, which it was plain on the face of it, he could not conscientiously do. (4) The court erred in failing to exclude all the testimony, relative to a suitcase and articles in it, found a half mile from an abandoned car, shown by inference only as belonging to defendants, as too remote and as being no evidence of the guilt. (5) The court erred in failing to permit the attorney for the appellants to interrogate Raymond Begley as to who subpoenaed him, in view of the fact that it was shown during the trial that the sheriff was getting a large reward for conviction of appellants, and Begley had shown himself a chameleon and a willing witness for the State. The question was asked for impeachment purposes and should have been answered. (6) The court erred in failing to rebuke the prosecuting attorney for repeatedly asking witness McCown relative to a certain gun which he displayed before the jury, after the court had sustained objections to his questions and when it was apparent that the State's attorney knew he could not connect the gun with the appellants, but was asking the questions to prejudice the jury. (7) The court erred in permitting McCown to testify as to where Hunter Albritton and Orville Taylor lived at the time he testified he had seen an article printed in a Sikeston paper, over the objection and exception of the appellants and after the court had refused to permit witness to testify what parties the newspaper article implicated in this robbery, thus, getting before the jury the prejudicial matter indirectly which the court had refused to let him do directly. (8) The court erred in permitting McCown, to testify as to where Hunter Albritton's and Orville Taylor's folks lived. (9) The court erred in permitting the attorney for the State to interrogate Joyner, and ask him if he knew at the time the Qulin bank was robbed that they were accusing Hunter Albritton and Orville Taylor of it, a question asked for no other purpose than to prejudice the jury, for it had no connection in any way as to whether Litzler had waited on the appellants and failed to recognize them and afterwards swore he knew them. (10) The court erred in refusing to permit appellants after it was shown that a postal card postmarked "Cleveland, Ohio, February 28, 1928," had been lost or destroyed, to show the contents or the further writing on the card, as said contents would have corroborated the fact that Hurst was to return car appellants came to Missouri in to Oklahoma, and showed that Hunter had no knowledge of the robbery. (11) The court erred in permitting Warner to testify that he believed a certain article carried his son-in-law as one of the alleged robbers, again getting before the jury indirectly what the court had refused to do directly by McCown, thus spreading the poison the State had been persisting in doing in spite of the court. (12) The court erred in permitting the attorney for the State, to show by witness Taylor that he did not make any effort to advise his son that he was accused of robbing the Bank of Qulin, and did not try to ascertain his whereabouts; all of which was prejudicial and immaterial and asked by the attorney for the State to insinuate that appellant Taylor was a fugitive from justice. (13) The court erred in refusing to permit attorney for the appellants to interrogate Orville Taylor as to whether or not he had seen a letter in Hunter Albritton's handwriting postmarked at Los Angeles, California. State v. Horton, 247 Mo. 666; State v. Volz, 169 Mo. 205; State v. Burns, 286 Mo. 665; State v. Statts, 296 Mo. 43; State v. Voltz, 269 Mo. 194. (14) The court erred in refusing appellants' request for a panel of thirty men from which to select a jury, the crime alleged having been charged as committed in Butler County. R.S. 1919, sec. 4061. (15) The court erred in failing to rebuke and reprimand attorneys for State for improper, prejudicial and inflammatory remarks. State v. Eudaly, 188 S.W. 110; State v. Isaacs, 187 S.W. 21; State v. Dozier, 177 S.W. 359; State v. Clapper, 203 Mo. 549; State v. Wigger, 196 Mo. 90; State v. Lockhart, 188 Mo. 427; State v. Ferguson, 152 Mo. 92; State v. Pearson, 270 S.W. 351; State v. Schneider, 259 Mo. 319; State v. Lingle, 128 Mo. 528; State v. Woolard, 111 Mo. 248; State v. Upton, 130 Mo. App. 316; State v. Burns, 286 Mo. 665; State v. Dixon, 253 S.W. 746; State v. Dingel, 248 S.W. 603; State v. Statts, 296 Mo. 43; State v. Repley, 278 Mo. 333; State v. Voltz, 269 Mo. 194; State v. Pleake, 262 Mo. 181. (16) The court erred in failing to discharge the jury after they had been repeatedly poisoned by immaterial, irrelevant, prejudicial and inflammatory testimony, brought before the jury by the attorneys for the State, over the objections and exceptions of the appellants, and many times after the court had sustained the objections of the appellants, and by the prejudicial and inflammatory remarks of the attorneys for the State in the opening statement, the opening and closing argument, and many times after the court had sustained objections thereto made by the appellants. See citations last above. (17) The court erred in giving Instruction 1 in the form it was given. It is true the instructions should be read jointly and altogether, but when an instruction attempts to cover the whole case it should not leave out the defendant's theory of defense. (18) The case of appellant Hunter Albritton rested largely on two depositions read in evidence, and by the reading of the qualification of jurors it will be seen, and the court must have seen, that a number of the jurors were not familiar with this kind of evidence and some were adverse to it. Under the circumstances, in order that Hunter Albritton should have a fair trial, the court should have instructed the jury on the weight and value to be given depositions. State v. Baldwin, 297 S.W. 10; State v. Harmon, 296 S.W. 391. (19) The defendants state that they should have a new trial for the reason that since said trial they have discovered much new and material evidence, and at the time of going to trial they had no knowledge of the existence of same, neither did they have any way of knowing that such evidence was in existence; and further, it is not cumulative, but, had they had the evidence which they have discovered since the trial, it would, in all probability, have produced a different result, and if granted a new trial, they believe they can obtain such witnesses and have them appear and testify in court. State v. Speritus, 191 Mo. 41; State v. Kyle, 259 Mo. 413; State v. Mahood, 177 S.W. 372.
Stratton Shartel, Attorney-General, and Denton Dunn, Assistant Attorney-General, for respondent.
(1) The record shows abundant substantial evidence of the crime as charged and of the identification of the defendants as the bank's robbers. State v. Henke, 313 Mo. 627, 285 S.W. 395; State v. Harris, 22 S.W.2d 802. (2) The information charging conjunctively that the defendants committed robbery "by force and violence to the person of Irvin Waller" and "by putting the said Irvin Waller in fear of some immediate injury to his person," was proper, as the clauses are not repugnant, and Sec. 4058, R.S. 1929, states but the one offense of robbery in the first degree, although it can be committed in one of several ways. State v. Currier, 225 Mo. 642; State v. Flynn, 258 Mo. 211; State v. Emmons, 285 Mo. 54, 225 S.W. 894. Neither does the information nor the proof relate to robbery in the second degree under Sec. 4059, which is by putting a person in fear of injury to person or property at a different time. State v. Smith, 119 Mo. 439. (3) The court sustained the objections to the witness Waller's stating "I think" the defendants were the robbers, so that criticism of his later testimony that he knew they were the defendants only goes to its weight and not to its competency. (4) The court properly admitted the evidence as to the contents of the suit cases found the next day in the vicinity of the automobile abandoned after the flight of the defendants, shown by a chain of personal identifications in the record as well as of other circumstantial evidence. In view of their close connection with the crime and the flight therefrom, the suit cases' contents were competent to be shown, and defendant Taylor himself testified that on his way to Missouri in the car: "I used my shaving mug with my father's name on it, and my safety razor," which were two of the articles found, while others bore the defendants' initials. There was proximity of time and place. (5) The sustaining of the objection as to who subpoenaed witness Begley was proper, as such a fact is immaterial, the witness having already said the State subpoenaed him, an official duty commonly known to be performed ordinarily and properly by the sheriff, who defendants were allowed to show expected a large reward, if defendants were convicted. The question as asked was irrelevant to any supposed undue influence of the sheriff over the witness. (6) The court sustained all objections to the gun being introduced in evidence, and later though no further offer in evidence was made of the gun, at the request of defendants' counsel twice told the jury it had been stricken out and not to consider the testimony about the gun. The gun produced, not having been identified with the case, was manifestly of no importance thereto. It was sufficient for the court to sustain the objections as fully as it did, and within its sound discretion to refrain from further commenting on so trifling a matter as the prosecutor's ineffectual attempts to identify some particular gun with the case on some theory not clearly appearing. A clear abuse of judicial discretion is necessary to predicate error thereon. State v. Bushong, 246 S.W. 919; State v. Mathis, 18 S.W.2d 8: State v. Lynn, 23 S.W.2d 139. (7) There was no objection made to the question whether the witness McCown had seen an account of the robbery in a Sikeston paper, nor to the answer "yes" thereto. To the question what parties the newspaper article implicated, the objection was made that it was offered to prejudice the jury and that the article itself was the best evidence as to what the newspaper said, which objection the court sustained. (8) The witness then answered "yes" to questions as to whether he knew where the defendants' people lived at the time the Bank of Qulin was robbed, all without any objection. This interrogation was repeated, whereupon defendants' counsel objected "unless he knows where all their folks lived," which objection the court overruled, saying "you can cross-examine him about that." Later, the court, apparently of its own motion, sustained this last objection, and struck out the answer on the ground that the testimony should relate to the defendants themselves and not to some relatives. Defendants cannot now change their grounds of objection below. Defendants did not object below on the ground of the question being prejudicial, as they now attempt as appellants. (9) Defendants' witness Joyner had testified, on cross-examination, without objection that he heard about the Bank of Qulin being robbed about the time it happened. Then, the prosecutor asked him whether he knew then that they were accusing the defendants of robbing that bank. Objection was made to the question as prejudicial and rebuke asked of the attorney for asking it, which objection was overruled, but no answer was made. There is no ground here for charging abuse of discretion in not rebuking the prosecutor who did not require answer to his question after objection made thereto, but impliedly withdrew it by not pressing for answer thereto. (10) The court allowed the defendant Albritton's brother to testify that he received an alleged lost post card, post-marked "Cleveland, Ohio, February 28, 1928" from said defendant, but properly refused to allow the contents or further writing on the card, when objected to as self-serving and immaterial. If such writings were admissible, it would be a simple matter to prepare proof of alibi in advance. (11) As to overruling the objection to the witness Warner's testifying that he believed a newspaper article had carried his son-in-law as one of the alleged robbers, the witness had already answered to the question. "Did you learn that your son-in-law was being accused of participating in that robbery?" "I saw that in the paper later on," and to the question "When did you learn about that?" "I think I saw that in the paper about the middle of the next week." All this without any objection whatsoever, so that if there was any possible error in permitting the third question, it was immaterial and in fact favorable to the defense, as the last answer was: "I would not be sure about that," thus qualifying his former answers. Furthermore, the record shows no objection made until after the question had been answered, and no motion made to strike out. Error cannot be made nunc pro tunc by ex post facto objection only. (12) As to the witness Jake Taylor, the question asked was whether he made any effort to try to advise himself that his son was accused of robbing the Bank of Qulin, to which objection was made that it was immaterial and highly prejudicial, and that he was not required to advise his son of any such accusation. This objection was overruled, but no answer made. Thereupon, witness was again asked whether he tried to ascertain the whereabouts of his son, Orville, to which objection was made "for the reasons just given," and upon being overruled, answer made: "No, sir." We cannot see how error can be predicated on matter, already received in evidence without objection, being repeated, where no objection was made on that ground or on the ground now first urged of its being an insinuation that appellant Taylor was a fugitive from justice. This repetition was certainly too immaterial to be prejudicial in any sense. (13) As to the offer to prove by Orville Taylor that he had read a letter from Hunter Albritton post-marked at and directed from Los Angeles, California, aside from anything else this offer of proof was insufficient on its face for failure to state the date of the purported letter. (14) Appellants' request for a panel of thirty men from which to select a jury appears in the record for the first time in the motion for new trial, which is too late, even if such a panel were required. State v. Collins, 86 Mo. 245. Also though the proof herein might have justified an information under Section 4061, Revised Statutes 1929, for robbery by means of a dangerous and deadly weapon, involving a possible death penalty, the prosecutor contented himself with charging under Section 4058 only robbery in the first degree, and relied upon the proof of the putting in fear of some immediate injury to the person, in accord with which the court instructed the jury and the verdicts are of guilty as charged in the information, thus fulfilling the law as written. Appellants cannot complain because they were not allowed a chance to suffer death, but must serve for a term of years only. The greater includes the lesser offense, when the greater is merely an aggravated form of the lesser and not differing in kind. State v. Curtis (Mo.), 23 S.W.2d 122. (15) The court exercised its sound discretion presumably in not reprimanding the prosecutor for not taking the gun away, after the court had eliminated it from the case and instructed the jury to that effect, and repeated his ruling again upon defendants' counsels mentioning the gun again upon the argument. Neither can we find any just ground of complaint in the further rulings of the court upon the objections to arguments, as it will be seen that the court was extremely careful to confine the case to the evidence and the law in its rulings and admonitions to counsel and advice to the jury upon objections made during the trial and argument of the case. (16) Neither can we find any such alleged error of State's counsel nor of the court in the record as would have called for a discharge of the jury at any stage of the trial proceedings. (17) There is no rule of law requiring all the law of the case to be specifically covered in any one instruction, and Number 1 clearly puts the burden on the State to prove all the essential elements of the crime charged, and it is consistent with all the other instructions, and proper. (18) Counsel criticise Instruction No. 4, for saying: "Now, if the evidence" instead of saying: "Now, if all the evidence," but "the evidence," so used, means all the evidence, and no other construction can reasonably be put upon such language of ordinary usage. State v. Brooks, 220 Mo. 74. (19) As on other points sought to be made counsel cite no pertinent authority, nor any, in fact, to show that the court should have given, without any request therefor, a specific instruction as to the weight and value of deposition testimony. On the voir dire examination of the jury panel, the court said of deposition testimony: "That testimony is subject to the same test as any other testimony and is to be weighed by the same rule as any other testimony." If defendants desired a written instruction to the jury on this question upon final submission of the case, they should have asked for it, as such an instruction is at most not an ordinary requirement of law that must be given, but rather in the nature of a privilege to be asked for or waived, as the defendants may elect at the trial. State v. Herring, 268 Mo. 514; State v. Reich, 293 Mo. 415. (20) The final point raised is the one of alleged newly discovered evidence entitling the defendants to a new trial. But aside from any other question, an examination of the affidavits of the so-called newly discovered evidence discloses the fact that it is all merely cumulative or corroborative of evidence already in the record, so far as any of the alleged new evidence might be competent for any purpose. Counsel say that such affidavits are not commutative, but that is exactly what they are, a ringing of immaterial changes upon evidence already adduced. There is no showing whatever of any ground for retrial on newly discovered evidence, or error otherwise, on any legal theory. Parties are not entitled to a retrial, when they have had one fair trial without legal error, in the absence of a clear showing of a real injustice having been done, and not because they might on a retrial make a fuller showing on incidental matters in a case.
In the Circuit Court of Butler County, October 21, 1929, the defendants were found guilty of robbery in the first degree and each of them sentenced to a term of twenty years in the penitentiary. Both defendants appealed.
Thursday, February 21, 1928, a Buick automobile with wire wheels, described by different witnesses as "red," "cherry color," and "wine color," left Tulsa, Oklahoma, containing the two defendants and one Fred Hurst. The automobile belonged to Isabel Howard, who loaned it to the three men to drive to Missouri. Defendant Orville Taylor's father lived at Sikeston, Missouri, in Scott County. Defendant Albritton had a brother living in Sikeston. On the Sunday following that date and also on days before and after, the automobile was seen at various places in Scott and neighboring counties. Defendant Taylor testified that they went to Canalou, in New Madrid County, where his father-in-law lived. Later they were at Sikeston.
The following Thursday, February 28th, about two P.M., that automobile with three men in it stopped in the street in Qulin, Butler County, near the Bank of Qulin. One man remained in the car while the other two went into the bank, held up the cashier, Irvin Waller, and took from him more than $2100, the money of the bank. The two then got in the car and it sped away to the north.
Qulin is about fifteen miles southeast of Poplar Bluff in the southeast corner of Butler County. Highway No. 60 runs from Poplar Bluff eastward through the towns of Dudley and Dexter in Stoddard County and on to Sikeston in Scott County. The robbers apparently attempted to avoid the traveled highways as much as possible; they drove straight north from Qulin, intercepted Highway No. 60 at Log Cabin, a little west of Fisk, about ten miles east of Poplar Bluff, drove east on Highway 60 to Dudley in Stoddard County, seventeen miles from Poplar Bluff. There they turned off the highway sharply to the north. News of the robbery spread over the country. Dr. Greathouse at Fisk heard of it. He testified that he and two other men went to Log Cabin and as the red Buick car passed with three people in it he shot at it and the occupants of the car shot back four times.
J.B. Buchanan, a deputy constable running a filling station at Fisk, was with Dr. Greathouse at Log Cabin and testified to the same incident. Those witnesses pursued the red car, but before they could overtake it they went into a ditch.
About 3:30 or four o'clock that afternoon that red car was stuck in the mud in a country road about ten miles west of Bloomfield, and between Bloomfield and Puxico, in Stoddard County. It was pulled out of the mud by Carlos Potter. Later the red automobile was found abandoned, sitting behind an old schoolhouse between Bell City in Stoddard County and Morley in Scott County. The tracks of three men led from it toward a woods where two suitcases were found, one of which contained shirts with the laundry mark "H.A." on the pockets and shirts with the mark "O.T.," a shaving mug with the name "Jake Taylor" on it, also a razor and neckties. It is not disputed that the robbery as described was perpetrated by men who came to the bank in the same red car which bore the defendants from Oklahoma to Missouri, nor that Hurst was one of the robbers. Defendants contend that they were not there at the time of the robbery.
The cashier of the bank, Irvin Waller, was asked if he knew who came in the bank and forced him to put up his hands. He said he thought it was Hunter Albritton. Objection to that was sustained and he was asked if he knew who it was. He said, "Yes, it was Hunter Albritton, and the other fellow was Orville Taylor." He described the red Buick car with wire wheels. One O.F. Dickey, who passed the bank at the time the robbery was going on, saw the red automobile with wire wheels, and a trunk on the back. He saw the two men come out of the bank, run down the walk and get into a car and drive away fast. One of the men strongly resembled Hunter Albritton.
John Litzler, who kept a filling station at Dudley, seventeen miles east of Poplar Bluff, testified that about 3:30 February 28th he heard of the Bank of Qulin robbery; that an automobile with three men in it passed through Dudley going east and turned a square corner (north) at a high rate of speed. About 12:15 of that day, before the robbery, the same car stopped and the occupants bought eight gallons of gasoline from him. It was a red Buick with wire wheels and had a trunk on the back. One man sitting in the back seat had a gun in his pocket. They paid him in silver and didn't wait for the change. He had seen these same people the evening before when they had bought gasoline; two of the men were the defendants. No other car of that description passed his garage.
Hunter Langford testified that on the afternoon of the day of the robbery, on a road which went into Highway 60, he saw a car of that description going east with the two defendants in the car. They asked about the road. They wanted to get in the road to Bloomfield and went that way.
Eff Kelley of Bloomfield testified that he heard of the robbery in the afternoon of the day it occurred and was asked to watch for the robbers. He saw the red car with wire wheels pass about four P.M. going east; he fired at it and glass fell in the road. He got within fifteen or twenty feet of the car and one of the defendants was in it, although he was not positive about the identification.
John Morgan, who lived on the road from Puxico to Bloomfield, testified that about 3:30 or four o'clock on the day of the robbery one of the defendants came to him and asked him to bring his team and get the man's car out of a mudhole; he went, and when he got to the place Carlos Potter already had pulled the stalled car out. One of the defendants paid him two dollars for bringing his team down and said. "We have no use for you now." Witness walked a few steps towards the car and one of the defendants said with an oath, "I told you we did not need you down here." He saw the defendants at the preliminary hearing and they were the same men that were at the red car that day. It was Orville Taylor who paid him the two dollars.
Roy McCown, Deputy Sheriff of Stoddard County, testified that he heard of the robbery, set out east on Highway 60, and saw the red car going sixty-five miles an hour, but he had an accident and could not follow it. Afterwards he got the car from the Stoddard County officers and saw blood on the car at the rear end, and a glass had been shot out.
E.A. Dye, former sheriff of Scott County, testified to the contents of abandoned suit cases, and said that Jake Taylor was the father of Orville Taylor.
Allen Hennard testified that on the night of the bank robbery three men came to where he was, about a mile west of the schoolhouse where the red car was abandoned, and asked him to take them to Crowder. Two of the men had the arms of the other around their necks, helping him along as they walked.
The defendants were arrested in Los Angeles.
Orville Taylor testified on his own behalf that he borrowed the red Buick from Mrs. Howard, and drove with Hurst and Albritton from Tulsa, Oklahoma, to Missouri; that he stayed at the home of his father-in-law at Canalou until Sunday night before the robbery; that then Hurst came and took him and his wife in the car to his father's home in Sikeston, and then Hurst drove away, and he had not seen the car from that day. He had shaved, using a mug with his father's name on it. He stayed at his father's house until Tuesday morning and then visited his brother, Walker Taylor, came back that evening, and left for New Orleans the next morning about 2:30. He said he did not rob the Qulin Bank.
Hunter Albritton did not testify. John Albritton, his brother, testified that Hunter Albritton came to his home Wednesday night before the robbery. He stayed there Wednesday night and Thursday night and left early Friday morning. He bought a ticket for St. Louis. Witness got a card from him the following Thursday post-marked "Cleveland, Ohio."
Defendants introduced other evidence tending to corroborate their theory that they were not with the red car but were elsewhere at the time of the robbery.
The motion for new trial assigns a number of errors, mostly relating to the introduction of evidence.
I. It is claimed that there was no substantial evidence to sustain the conviction. From the facts set out above Sufficient the evidence was ample to make a submissible case. Evidence. Defendants were identified several times in connection with the robber's car at places where, if innocent, they could not have been.
II. It is further claimed that the verdict is based upon instructions on robbery in the second degree whereas the defendant was charged with putting the cashier in fear Charge: of immediate danger with a dangerous and deadly Election: weapon. The instruction authorizes a finding of Quashal. robbery in the first degree and such was the verdict.
The argument runs that there were two ways of charging robbery in the first degree; that both ways were charged in the information and that the court erred in overruling appellant's motion to quash and its motion to have the court require the State to elect upon which specific charge it would go to trial. The information charges in the usual form that the defendants made an assault upon Irvin Waller, the cashier of the Bank of Qulin, and took $2500 in lawful money of the United States, property of the said bank "from the person in the presence and against the will of the said Irvin Waller then and there by force and violence to the person of the said Irvin Waller and by putting the said Irvin Waller in fear of some immediate injury to his person."
Section 4058, Revised Statutes 1929, defining robbery in the first degree, describes the different ways by which that offense may be committed, connecting the different methods by the alternative "or." The information charges that it was accomplished by all those methods. All that could be true. If the evidence tended to show that the robbery was accomplished either one way or the other where both methods were charged, a case was properly made out and it was not error to overrule the motion to quash or the motion to elect.
III. It is claimed that the court erred in permitting Irvin Waller to say "I think" when he identified the defendants as committing the robbery. When asked if he knew the two I Think. men who came into the bank he answered "I think so." Then when asked who they were he said, "I think they were those two fellows," pointing to the defendants. Objection to that identification was sustained. He was then asked if he knew Taylor and Albritton. He said only by hearing their names since the robbery. He knew the parties called by those names. He then was asked who came to the window and told him to put up his hands. He said he thought it was Hunter Albritton. Objection to that was sustained. He then was asked if he knew who it was. His answer was, "Yes, it was Hunter Albritton." There was no objection to that answer to the question. It was positive and direct after the court had excluded his mere "think so." We are unable to find any error there.
Error is assigned to allowing questions in several instances to which there were no answers and therefore no evidence to object to. It is unnecessary to go over those in detail. Questions Error, it is claimed, was committed in admitting the Without testimony of four witnesses as to the contents of the Answers. suit cases found quite a distance from the abandoned car. This evidence was properly admitted. Orville Taylor testified that he and Albritton with Hurst came to Missouri in Mrs. Howard's car, describing some of their movements after they got to Missouri; that he used the shaving mug Suit with his father's name on it — the mug which was one of Case. the articles found in the abandoned suit cases. That car was abandoned and the tracks of three men led from it to the place where these suit cases were found. The three men who had been in the car were identified as the defendants and Hurst, and the articles in the suit cases bore marks which indicated that they belonged to the defendants.
The defendants' counsel in cross-examination of Raymond Begley, witness for the State, asked if he knew what officer subpoenaed him. Objection by the State was sustained and error is Arrest. assigned to that ruling. It is said that the question was asked for impeachment purposes, but defendants made no offer to prove what would be shown by such examination. The court cannot be charged with error on that account.
IV. Numerous errors are assigned to the action of the prosecuting attorney and the failure of the court to Action of rebuke him at times. The objections in most Prosecuting instances were sustained and no rebuke was asked. Attorney.
Error is assigned to permitting witness McCown to testify as to where the defendants' folks lived. It was a proper subject of inquiry. Defendant Taylor testified to his Residence of movements and to his purpose in coming to Missouri. Relatives. The residences of the families of the relatives of the two defendants were facts showing the surrounding circumstances.
When John Albritton testified that he received a post card postmarked Cleveland, Ohio, February 28th, from his brother Hunter Albritton, he was asked what was said on that Postcard. post card. This was excluded, and properly. Whatever it might have said was pure hearsay. The post card itself, if offered, would have been incompetent as to any statement of fact on it, because hearsay. The fact that witness got the post card was all that was competent.
W.H. Warner, father-in-law of Orville Taylor, on cross-examination was asked about the movements of his son-in-law Orville Taylor, and if he read about the Qulin bank robbery. He answered that he read about it the next week. Asked Belated if he learned that his son-in-law was accused of Objection. participation in the robbery, he said that he saw that in the paper later on. Asked when he saw it he said he saw it the middle of the next week. Asked if the newspaper article carried his son-in-law as one of the robbers, he said he believed it did, he would not be sure. Then an objection was made. The defendant waited until the witness said everything he had to say or that was asked of him before making an objection. There was no motion or request that the court exclude from the consideration of the jury the evidence already in. The court cannot be charged with error for permitting the witness to answer questions which were not timely objected to.
When Jake Taylor, father of Orville Taylor, testified at length about the movements of his son he was asked if he had heard that his son was accused of the robbery. He said Cross-Examination. he learned it later on. He said he made no effort to locate his son when he knew the officers wanted him for robbery. This was objected to and its admission assigned as error. Great latitude is allowed on cross-examination, and this was not improper as going to the credibility of the witness.
V. Error is assigned because the court refused to permit appellants to interrogate Orville Taylor about a letter in Hunter Albritton's handwriting, postmarked Los Angeles, Contents California. The question went to the contents of the of Letter. letter. There was no showing that the letter was lost or was inaccessible, and no date of the letter was mentioned, and nothing to indicate that it would be relative to any issue. No error is shown. Besides there was no offer of proof. No error is in the ruling.
VI. Error is assigned to the refusal of the court to furnish a panel of thirty men from which to select the jury, on the theory that under Section 3674, Revised Statutes 1929, where Panel of an offense punishable with death is charged the Thirty. defendant shall have twelve challenges and the State six. The information might have charged robbery committed by means of dangerous and deadly weapons, under Section 4061, for such weapons were used, but it simply charged robbery in the first degree under Section 4058, and the case was so submitted. The jury could not have been authorized to inflict the death penalty. The defendants, therefore, were not entitled to a panel of thirty.
VII. Complaint is made of improper remarks made by the prosecuting attorney. At one time Mr. Cope, for Argument defendant, made this objection: "We object at this time to Jury. to counsel laying this gun out here." There was no showing that any such gun was laid out. The court said, "I eliminated the gun; it isn't in the case."
At another time Mr. Cope objected to the statement of the prosecuting attorney that Hunter Albritton said, "I am afraid of this man Litzler, and we'll just go back through Dudley and see if he recognizes us." The court said the argument was improper and directed the jury to disregard it. The court did not abuse its discretion in failing to reprimand the State's counsel.
Mr. Cope again objected that Mr. Kearby for the State had said Mr. Gresham and his private secretary could go behind closed doors and make any kind of testimony. The record did not show that counsel made any such statement. The court, however, instructed counsel not to make prejudicial arguments.
Again Mr. Cope objected when the prosecuting attorney mentioned the poor fellow (Mr. Hurst) as going down and killing himself and his sweetheart and laying the blame on him for robbing the bank. The court referred to that remark as made in the opening statement, instructed the jury to disregard it, and admonished Mr. Kearby to avoid prejudicial arguments. It was within the discretion of the court to refuse to discharge the jury.
Mr. Cope again objected to a statement of the prosecutor that for a year or more the defendants were fugitives from justice. The court overruled the objection, saying it was a question for the jury to determine. The evidence shows that the defendants left Missouri as hurriedly as they could after the bank robbery — one of them the day after, and the other, he claimed, the day before. It was notorious and in the newspapers that these defendants were thought to have committed the crime. They were found in Los Angeles and were there arrested. It was a question for the jury whether they had fled from Missouri.
Other remarks were made by the prosecuting attorney to which objections were sustained.
Mr. Gresham for the defense, while making his closing argument, said that if there was anything wrong with those defendants or their witnesses "the State of Missouri should have had witnesses here to show it." Mr. Tedrick for the State objected on the ground that the law didn't permit the State to impeach the defendant unless he takes the witness stand. The court sustained the objection. The ruling was not improper. Other objections were made where no exceptions were saved. Others were overruled where the court said the prosecuting attorney was replying to the defendants' argument.
We find no error in any of the incidents.
VIII. Error is assigned to the giving of several instructions. It is said that Instruction No. 1 was erroneous Instructions. because it left out the theory of the defense. The only defense was an alibi, and another instruction properly and fully directed the jury in regard to it. No error.
Instruction No. 2 on reasonable doubt is in the usual form closing thus: "If upon consideration of all the evidence you have a reasonable doubt of a defendant's guilt you should Reasonable acquit such a defendant," etc. It was objected that Doubt. it did not distinguish which defendant. It meant a defendant in regard to whose guilt the jury entertained a reasonable doubt. It might be either or both. Defendant offered no instruction making more specific that direction to the jury and has no reason to complain.
Instruction No. 4 upon alibi closed in this way: "Now if the evidence leaves in your minds a reasonable doubt as to the presence of said defendants, or either of them, at the place where the offense was committed," etc. The objection is Alibi. to the use of the expression, "if the evidence" instead of "if upon consideration of all the evidence." Mention of the evidence means all or any of the evidence which would bear upon the feature of the case. The jury could not be misled by it.
It is further asserted that the court should have instructed the jury as to the weight and value to be given depositions which were read on behalf of defendant Hunter Albritton. Depositions. In the voir dire examination of the panel, jurors were asked if they would give the testimony of witnesses taken in Cleveland, Ohio, the same weight and value they would give it if the witnesses were present. The court said that testimony is subject to the same test as any other testimony and is to be weighed by the same rule as any other testimony. A juror then said he would give it the same value. If defendants wished a written instruction submitting to the jury that subject they should have asked it. It was a collateral matter. The failure to give it, without such request, was not error.
IX. Appellants claim error in the court's refusal to grant new trial on the ground of newly discovered evidence, the motion for new trial being supported by the affidavits of witnesses who could be procured for new trial. One of those New Trial. witnesses, Herbert Arnold, swore that he was subpoenaed to appear at the trial but didn't go; that he told "them" (meaning probably defendants or defendants' attorneys), he didn't know anything about it and "they" let him off. Tilford West swore that he was subpoenaed, but did not attend the trial and didn't tell what he knew to Albritton or Taylor, nor to their attorneys.
The first witness admitted that he lied to them and the second admitted that he concealed his knowledge. These two witnesses are now put forward by the defendants as truthful witnesses. Besides, all they stated in their affidavits is merely cumulative, tending to support the alibi offered by defendants. West also put into his affidavit a conversation he had with Hurst whose name he mentions as Hurt; a conversation which was purely hearsay and incompetent.
Marvin Mickle, another witness whose affidavit is attached, swore that he knew of facts which tended to support the defendants' alibi. He related a conversation between himself and Mayberry (another name for Hurst), pure hearsay and incompetent. He also said that he concealed what he knew before the trial.
J.D. Hazel's affidavit states facts tending to support the alibi, cumulative evidence. He swore that he concealed what he knew until after the trial "because I did not want to get someone else in trouble."
The affidavit of Isabel Howard, owner of the automobile, which was borrowed from her in Tulsa and used by the robbers in committing the crime, is attached to the motion. She swore to some undisputed facts about the lending of the automobile to Albritton and Taylor and said that Hurst was to bring it back. She then swore that after the robbery some parties claiming to be detectives came to her place and threatened her if she did not say that Albritton and Taylor stole her car. This matter was entirely irrelevant. She mentioned nobody making these threats who was connected with the case.
All the newly discovered evidence was cumulative or hearsay or otherwise incompetent. Besides, as to those witnesses who were at all times accessible to defendants and lied about what they knew or concealed their knowledge, no sufficient diligence is shown, no attempt to find out what they knew.
X. Other errors are assigned, but they are not sufficiently specific or not of sufficient importance to merit consideration. The defense was most strenuous. Throughout the trial of the case every imaginable point that could be made by the Trial: defendants was made. The court was called upon to Conclusion. rule repeatedly upon objections which were not well founded and only added to the trouble and confusion of the trial. The trial court throughout maintained a fair and just attitude towards the parties, and no reversible error was committed.
The judgment is affirmed. All concur.