State v. James

Citation115 S.W. 994,216 Mo. 394
PartiesSTATE v. JAMES et al.
Decision Date02 February 1909
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

John James and another were convicted of robbery, and they appeal. Reversed and remanded.

The defendants in this cause appeal from a judgment of conviction of robbery in the first degree in the circuit court of Pemiscot county, Mo.

On the 14th day of November, 1907, the prosecuting attorney of Pemiscot county filed in the office of the clerk of the circuit court of said county an information, duly verified, charging the defendants with the crime of robbery in the first degree. Substantially, this information charged that the defendants, on the 20th day of October, 1907, in said county, feloniously did make an assault upon one Marshall Luther, and by putting the said Marshall Luther in fear of immediate injury to his person, and by force and violence, and against his will, feloniously and violently did rob, steal, take, and carry away from the person of said Luther of his goods and property the sum of $9.75, lawful money of the United States, of the value of $9.75. On the 25th day of February, 1908, both of the defendants waived arraignment and pleaded not guilty to the charge in the information. They were then put upon their trial before a jury upon said charge.

We deem it unnecessary to set out in detail the evidence on the part of the state or that in behalf of defendants. It is sufficient for the purpose of determining the legal propositions presented to briefly indicate the nature and character of the testimony developed upon the trial. On the part of the state the prosecuting witness testified that the defendants accosted him near an old depot in the town of Caruthersville, and dragged him a short distance to a box car, which was standing on a side track near by. He further testified that they forced him into the box car, beat him on the head and arm with a cane, and knocked him down with their fists in the car, and by this means took from his person $9.26 in money. He identified the defendants as being the parties who had robbed him. The defendants, upon their part, testified in their own behalf and denied the charge in the information; denied having any knowledge of or acquaintance with Luther.

It further appears in evidence that the prosecuting witness, within a short time after it is claimed that he was robbed, reported the same to the town marshal, who went to the box car and found the defendants there and immediately searched them and found in their possession only the sum of four dollars and some cents. The defendants introduced a witness by the name of Clay Secoy, who testified that on the night, and before the hour of the supposed robbery, the prosecuting witness was in a slum district of the town of Caruthersville, and was drunk, without money, and asking for money to get a bed. The state, however, introduced testimony tending to show that this witness was unworthy of belief, or at least tending to lessen the weight of his testimony. It was shown by the state that Secoy was arrested the night of the robbery for playing a game of craps. Secoy, upon cross-examination, admitted that he had been frequently convicted of crime and had been imprisoned in the penitentiary, but said that he had been pardoned for the penitentiary offense. It was also shown by the defendants upon the cross-examination of Luther that he was resting under a charge pending against him in Dunklin county for assaulting some young men. There was other testimony introduced on the part of the defendants tending to show that the prosecuting witness made conflicting statements as to the amount of money of which he was robbed, as well as the kind of money. There was other testimony on the part of the state tending to contradict testimony on the part of the defendants that Luther, the prosecuting witness, was drunk on the night of the robbery. At the close of the evidence the court instructed the jury, and the cause was submitted to them, and they returned a verdict finding both of the defendants guilty and assessing their punishment at imprisonment in the penitentiary each for a term of 10 years. Timely motions for a new trial and in arrest of judgment were filed and by the court overruled. Sentence was pronounced, and judgment followed in accordance with the verdict returned by the jury. From this judgment and sentence the defendants prosecute their appeal to this court, and the record is now before us for consideration.

Sterling H. McCarty, for appellants. Herbert S. Hadley, Atty. Gen., and F. G. Ferris. Asst. Atty. Gen., for the State.

FOX, J. (after stating the facts as above).

1. At the very threshold of the consideration of this cause we are confronted with the challenge by the representative of the state of the sufficiency of the record to authorize a review of the errors complained of, except as they appear upon the record proper. Directing our attention to that question, it must be frankly conceded that the transcript itself mingles matters of record proper in the bill of exceptions, and the form in which this record is presented for our consideration is by no means to be commended. However, an examination of it convinces us that the entire record, both record proper and bill of exceptions, are embraced within this transcript. Therefore we will not deny the appellants the right to have the expression of the views of this court upon the errors complained of.

2. The complaints of learned counsel for appellants, as indicated by the brief now before us, are: First, that the court failed to declare all the law to the jury which was applicable to this case; second, that the court committed error in permitting, without rebuke, the attorneys prosecuting for the state to make improper remarks in their addresses to the jury, which were prejudicial to the defendants. Upon the first proposition our attention is directed to the failure of the court to instruct the jury that they might find one or both of the defendants guilty, or acquit one or both of them, as they might find the facts to be, and, in support of this insistence that the failure to so instruct the jury constitutes error, our attention is directed to the case of State v. Vaughan, 200 Mo. 1, 98 S. W. 2. The disclosures of the record in the Vaughan Case in respect to this particular proposition were entirely different to the record in the case at bar. In the Vaughan Case the appellant prepared an instruction declaring the law as defendants in the case at bar say it should have been declared. The court refused that instruction, and this court held that it committed error. The record in this case embraces the instructions given by the court as well as the exceptions taken by the defendants on the ground that the instructions did not include all the law in the case, but it will be observed that it further discloses that, upon the objection of counsel being interposed to the instructions of the court as not declaring all the law in the case, the court then requested the defendants...

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