Opinion
No. 40387.
July 12, 1948.
1. CRIMINAL LAW: Robbery: Evidence of Identification Sufficient. The evidence on the identification of defendant as the robber with the knife was sufficient to support the verdict.
2. CRIMINAL LAW: Identification: Instruction Properly Refused. The trial court properly refused an instruction offered by defendant which constituted merely an argument on the evidence as to identification. The main instruction which was given required the jury to believe beyond a reasonable doubt that defendant committed the robbery. That was sufficient, and fully protected defendant on the issue of identification.
3. CRIMINAL LAW: Alibi: Instruction Proper: Additional Instruction Properly Refused. The trial court gave a proper alibi instruction and properly refused an additional instruction that such a defense "is a good defense in law."
4. CRIMINAL LAW: Robbery: Evidence: Throwing Away Knife: Additional Offense: Evidence Properly Admitted. Evidence that defendant threw away his knife just before he was apprehended by a police officer was competent even though it would tend to convict defendant of a separate offense, since it had probative value in connecting him with the crime for which he was being tried, the robbery having been committed with a knife.
Appeal from Circuit Court of City of St. Louis. — Hon. Robert L. Aronson, Judge.
AFFIRMED.
Geo. L. Vaughn for appellant.
(1) Evidence concerning a separate and distinct offense which is so remote in time and place as not to make it a part of the res gestae, or which is not necessary for the purpose of establishing the identity of the defendant, or to show knowledge, intent, malice, or motive, is irrelevant and inadmissible on the prosecution of a particular crime, and it is prejudicial error for the court to admit such evidence, 16 C.J., secs. 1115, 1132; State v. Hyde, 136 S.W. 316. (2) It was prejudicial error for the court to permit officer Wallace to testify concerning the possession of a knife by the defendant and a pistol by Henry J. Schneider at the time of their joint arrest which took place more than three miles distant from the scene of the crime charged and more than three hours after the same is alleged to have been perpetrated, none of the exceptions to the general rule being present. Likewise, the testimony describing the appearance, condition and other circumstances surrounding the possession of said weapons, and their admission into evidence for examination by the jury constituted error on the part of the court which was prejudicial to the defendant. State v. Banks, 167 S.W. 505; State v. Hyde, supra. (3) Instruction 2, given by the court, and which was intended to cover the entire case and authorized a verdict of guilty on the facts therein stated, is erroneous, because it ignores two of the main points of defense which the evidence in behalf of the defendant presented, towit, mistake in the identity of the person who committed the robbery as being another person than the defendant, and the alibi as shown by said testimony. It did not cover or instruct the jury as to the whole law of the case by reason of said omissions, and did not require the jury to find that the person present and participating in the robbery was the defendant, and was, therefore, prejudicial. Sec. 4070, R.S. 1939; State v. Hutchinson, 111 Mo. 257; State v. Weinberg, 150 S.W. 1069; State v. Mills, 179 S.W.2d 95; State v. Aitkenna, 179 S.W.2d 84. (4) It was prejudicial error for the court to refuse to give Instruction C which was proffered by the defendant on the defense of the alibi testified to by his witnesses. It correctly stated the principles of law in relation thereto, particularly embracing the requirement of telling the jury it was necessary to find that the defendant was present at the time and place of the commission of the crime charged, which issue had been omitted from the instruction on alibi given by the court; and, even if the requested instruction was erroneous, upon its being presented, it became the duty of the court to make whatever corrections or modifications he deemed proper and give the same, either in the proffered instructions or in the one which he did give. The instruction given by the court did not comply with the settled approved alibi instruction. State v. Hubbard, 171 S.W.2d 701; State v. Hilderbrand, 225 S.W. 1006; State v. Burnett, 188 S.W.2d 51. (5) It was prejudicial error for the court to refuse to give defendant's proferred Instruction D, which was a precautionary instruction on the question of identity, particularly so, in view of the conflict in the state's testimony, the condition of the weather and the lack of opportunity for observing the persons committing the robbery, and the evidence tending to establish and an alibi. And, if said instruction was not in proper form, it was the duty of the court to give a correct instruction in writing covering the issue therein dealt with. 16 C.J., sec. 2354; and cases cited under Note 17; State v. Lammert, 300 S.W. 707; State v. Duncan, 80 S.W.2d 149; Briscoe v. State, 263 S.W. 573; State v. Welch, supra.
J.E. Taylor, Attorney General, and Aubrey R. Hammett, Jr., Assistant Attorney General, for respondent.
(1) The verdict is supported by substantial evidence. State v. Moore, 339 Mo. 52, 95 S.W.2d 1167; State v. Biswell, 352 Mo. 698, 179 S.W.2d 61; State v. Gregory, 339 Mo. 133, 96 S.W.2d 47. (2) The court in giving Instruction 1 did not commit reversible error. State v. Vigus, 66 S.W.2d 854; State v. Adams, 318 Mo. 712, 300 S.W. 738. (3) The court committed no error in refusing defendant's requested instruction on alibi since the court properly instructed on alibi, and when considered along with other instructions given by the court, is sufficient. State v. Mangercino, 325 Mo. 794, 30 S.W.2d 763; State v. Kowertz, 324 Mo. 748, 25 S.W.2d 113; State v. Brooks, 220 Mo. 74, 119 S.W. 353; State v. Fike, 324 Mo. 801, 24 S.W.2d 1027. (4) The court properly refused Instruction D offered by the defendant. If the court had given said instruction, it would have been a comment on the evidence. State v. Kowertz, 324 Mo. 748, 25 S.W.2d 113; State v. Edelen, 228 Mo. 160, 231 S.W. 585; State v. Murphy, 29 S.W.2d 144, 325 Mo. 537; State v. Hampton, 172 S.W. 1. (5) The defendant failed to object to the introduction of the evidence, the knife and pistol used by the defendant and his companion, and therefore, it is too late to raise such objections for the first time in his motion for new trial. State v. Pierson, 337 Mo. 475, 85 S.W.2d 48; State v. Revard, 341 Mo. 170, 106 S.W.2d 906; State v. Matkins, 326 Mo. 1072, 34 S.W.2d 1.
William Clinton Smith was sentenced to ten years in the penitentiary for first degree robbery for taking a wallet while armed with a knife from David Matthews. He had a fair trial, and the sentence must be affirmed.
Matthews was walking along Warne Avenue in St. Louis between 12:15 A.M. and 12:30 A.M. on February 16, 1945. As he approached the alley between Kennerly and Lincoln Avenues he noticed two men standing in the mouth of the alley under a street light. He passed them. After he passed them one of them walked by him, turned and pushed a gun in his stomach and demanded his money, threatening to shoot him. The other, identified as the defendant, stepped behind him and put a knife against his neck, warning him that if he moved he would cut his head off. Defendant took Matthews' wallet from Matthews' hip pocket. Matthews stepped forward and struck the man with the gun. As he did defendant lunged at him and cut the lobe of his ear with his knife. Then defendant and his companion ran away.
Matthews called the police, reported the incident and described his assailants. Their descriptions were broadcast over the police radio.
At about 3:00 A.M. of the same morning a police officer recognized the two men as they were walking east on West Pine Boulevard near Sarah Street, about three miles from the place of the robbery. As they approached the officer one threw away a revolver, the other, the defendant, an open knife. They were arrested, and taken to the police station where Matthews, at about 4:00 A.M., identified them as the robbers who had held him up.
Matthews had reported to the police the gun used in the holdup was a 32 calibre nickel plated revolver. The gun recovered by the police was a nickel plated revolver with a bullet in the cylinder under the firing pin.
Matthews testified he had a good look at the two men. Because of the lateness of the hour he had looked at them intently. Although the night was misty the street light at the mouth of the alley provided sufficient light for him to see them clearly. When the first one stepped past him Matthews turned his head momentarily and saw defendant approaching with the knife.
The evidence on the identification of defendant as the robber with the knife was sufficient to support the verdict.
Defendant offered an instruction which singled out the question of the identification of defendant.
It stated: "The court instructs the jury that, if you find and believe from the evidence in this case that David Matthews was assaulted and robbed on the 16th day of February, 1945, then it will still be necessary for the jury to determine that this defendant is the person who committed said assault and robbery, if you so believe, and in that regard the question of the identity of the person who was present at the time and place of said assault and robbery is vital in the determination of the guilt or innocence of this defendant. And, in determining whether or not the defendant is the person who was present at said time and place, and taking part in said assault and robbery, you should take into account the facts and circumstances surrounding the same, including the time of day or night, the condition of the weather, and the likelihood of the person assaulted and robbed to be mistaken as to the identity of the person making the assault upon him."
The court properly refused the instruction as it constituted merely an argument on the evidence.
[789] The main instruction required the jury to believe beyond a reasonable doubt that defendant committed the robbery. That was sufficient, and fully protected defendant on the issue of identification. Unless the jury believed beyond a reasonable doubt that the defendant was the person who committed the robbery it could not have found him guilty under that instruction. The cases of Asher v. Commonwealth, 221 Ky. 599, 299 S.W. 203; People v. Garbaciak, 306 Ill. 254, 137 N.E. 832; and People v. Radcliffe, 232 N.Y. 249, 133 N.E. 577 have ruled the same way on this question.
Defendant's defense was an alibi. He offered an instruction on alibi which contained the sentence: "You are further instructed that this [alibi] is a good defense in law when established to the satisfaction of the jury." This instruction was refused but the trial judge gave a proper one of his own, similar in many respects except it omitted the above quoted sentence. Defendant attempted to have the judge insert such sentence in the instruction given. He was unsuccessful, and claims the judge's refusal to do so was erroneous.
The fact a proper instruction on alibi was given was sufficient in itself to inform the jury that such a defense "is a good defense in law." For the court to make such a pointed statement in an instruction might bring about just the opposite result from the one intended, and arouse suspicion about the veracity of the alibi. Furthermore, it might be argued that such a statement might emphasize a popular belief that alibi is a defense commonly resorted to with dishonesty.
The rule is now well settled that an instruction which tends to disparage an alibi as a defense is erroneous. We held an instruction which stated: "The court instructs the jury that although an alibi may be a well worn defense, yet it is a legal one, to the benefit of which the defendant is entitled, etc." was prejudicial because it characterized an alibi as a "well worn" defense. State v. Crowell, 149 Mo. 391, 50 S.W. 893. And see State v. Shafer (Mo.), 108 S.W.2d 360; State v. Taylor, 118 Mo. 153, 24 S.W. 449. Moreover, the proffered statement in this case would have been erroneous if construed to place a burden of proving it upon defendant at the peril of conviction, rather than merely raising a reasonable doubt as to defendant's guilt. In State v. Hubbard, 351 Mo. 143, 171 6 S.W.2d 701 we criticized an alibi instruction on that ground which stated: "The Court instructs the jury that such defense is as proper and as legitimate, if proved," etc. (our emphasis). We pointed out the phrase "if proved" indicated improperly the defendant had the burden of proving the alibi in order to establish this innocence. The court's refusal to instruct the jury as requested in this case was proper.
The evidence that defendant threw away his knife just before he was apprehended by the police officer was properly admitted. It was not incompetent on the ground it tended to convict defendant of a separate offense since it had probative value in connecting him with the crime for which he was being tried. Evidence which shows the defendant possessed, or had access to articles or weapons with which the crime was committed is relevant under one of the exceptions to the general rule that the state is not ordinarily allowed to show other offenses. State v. Hawley (Mo.), 51 S.W.2d 77; State v. Higginbotham, 335 Mo. 102, 72 S.W.2d 65; State v. Krebs, 341 Mo. 58, 106 S.W.2d 428.
Other complaints about the conduct of the trial and of the prosecuting officials are not sustained by the record or preserved for review. The jury were fully and properly instructed on all the issues in the case.
The judgment is affirmed. All concur.