State v. Buxton
| Decision Date | 11 December 1929 |
| Docket Number | No. 29957.,29957. |
| Citation | 22 S.W.2d 635 |
| Parties | THE STATE v. JOHN BUXTON, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. — Hon. J.V. Gaddy, Judge.
REVERSED AND REMANDED.
Sherman & Maughmer and R.F. Mumford for appellant.
(1) On a prosecution for a particular crime (robbery), evidence which in any manner shows or tends to show that accused has committed another crime wholly independent of that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible. And it is error to permit the defendant to be cross-examined as to other crimes to affect his credibility or for any other reasons, unless there has been a conviction of the defendant on the extraneous crime. Bill of Rights to the Constitution; Wharton on Criminal Ev. (9 Ed.) 48; Underhill on Evidence, 58; 62 L.R.A. 193; People v. Shea, 147 N.Y. 78; Commonwealth v. Jackson, 132 Mass. 16; People v. Molineux, 168 N.Y. 293; State v. Goetz, 34 Mo. 85; State v. Spaugh, 98 S.W. 55; State v. Hyde, 136 S.W. 322; State v. Banks, 167 S.W. 505; State v. Fenley, 275 S.W. 41; State v. Preslar, 290 S.W. 142. (2) Where defendant denies the commission of the crime, and where there was no evidence that the person committing the crime was intoxicated, it is error to instruct the jury "that evidence of the defendant's intoxication should not influence the jury in mitigation or palliation of his offense." 16 C.J. par. 2373.
Stratton Shartel, Attorney-General, and A.M. Meyer, Assistant Attorney-General, for respondent.
(1) Evidence of other crimes committed on the same evening as part of a general scheme to commit a series of robberies was properly admitted. State v. Carroll and Jocoy, 288 Mo. 392; State v. McCombs, 259 S.W. 440. The defendant was properly cross-examined about the matter, since he undertook on direct examination to account for all of his time on the evening of the robbery. He opened the matter up and it was proper to impeach his testimony as to alleged alibi on cross-examination. Sec. 4036, R.S. 1919; State v. McCombs, supra. (2) Learned counsel for appellant inadvertently misstate the record by implying that there was no evidence that defendant was intoxicated. That there was such evidence sufficiently appears from the testimony of defendant himself, and his witnesses, as well as the testimony of the Dennises for the State. In these circumstances the court properly gave an instruction that voluntary drunkenness does not excuse crime. State v. Woodward, 191 Mo. 634.
By an information filed in the Circuit Court of Buchanan County, Leo Dennis and Viola Dennis, his wife, and the appellant were jointly charged with robbery in the first degree. Appellant was separately tried and found guilty and the jury fixed his punishment at imprisonment in the state penitentiary for a term of fifteen years. From the judgment entered on such verdict an appeal was granted to this court.
The sufficiency of the evidence to authorize conviction is not challenged and hence a brief statement of facts will suffice. The State's evidence tended to prove that, shortly after midnight on January 20, 1928, Huber Forgey was accosted by two armed men on the porch of his residence in St. Joseph and compelled at the point of a pistol to part with $65 in money. Forgey testified to the identity of the appellant as the man who held the weapon. The two men compelled Forgey to go with them a short distance from his home before releasing him, and this enabled him to secure the license number of the automobile used by the robbers. The automobile proved to be the property of appellant's co-defendant Leo Dennis. This information led to the arrest of appellant and Dennis and his wife.
Leo Dennis entered a plea of guilty and was sentenced thereon to imprisonment in the penitentiary for five years. A nolle prosequi was entered as to Mrs. Dennis. Dennis and his wife were then used as witnesses by the State, being put on in rebuttal. Mrs. Dennis was the niece of appellant.
Leo Dennis testified that he and his wife went to appellant's rooms on the morning of January 20th, and that the three left there after dark that evening; that all three of them were drinking; that, while driving along the street, appellant had the automobile stopped and he got out and held up a man on the sidewalk and secured a small amount of money; that afterwards they drove to the western part of St. Joseph and held up another man, and that the robbery of Forgey on his front porch occurred later. His testimony as to the last robbery corroborated that of Forgey. The testimony of Mrs. Dennis substantially agreed with that of her husband.
The story of appellant was that he and Dennis and his wife started to the interurban station to meet a friend of Mrs. Dennis, and that they met the eight and nine o'clock cars and the friend failed to arrive. In the meanwihle the three of them had secured a number of drinks and appellant became sick before the time for the arrival of the ten o'clock car and Dennis and his wife drove him home in the automobile to his rooms in South St. Joseph and that he immediately went to sleep in an arm chair without undressing and that sometime during the night someone undressed him and put him to bed.
Appellant denied that he was with Dennis after ten o'clock, P.M., and said that he did not participate in the robbery of Forgey. He produced witnesses who testified to the fact of putting him to bed about midnight, which was approximately about the time of the Forgey robbery. There was also testimony that appellant's twin brother was wearing appellant's brown overcoat at the time of the robbery. This testimony was designed to meet Forgey's testimony that appellant was wearing a brown overcoat when the robbery occurred. One Hunsaker testified that he was held up and robbed near Tenth and Sylvanie streets on the night of January 20th, and identified appellant as the man who robbed him.
On his examination in chief and in response to a question appropriate for the purpose and put to him by his own counsel, appellant had testified that he did not hold up or help hold up anyone that night. Defendant also offered testimony tending to show his good character.
The admission of proof of robberies by appellant on the night of January 20th, other than the robbery charged in the information, is stoutly asserted to constitute Proof of prejudicial error. That such proof was damaging to the Other defense must be conceded. It is not contended by the Crimes. State that such proof is ordinarily admissible in a criminal prosecution. But the learned Attorney-General insists that it was not error to admit proof of that character under the peculiar situation of the record in this case, because such evidence was proper as tending to show that the robbery charged in the information constituted part of a general scheme to commit a series of robberies and because appellant opened up the issue himself by testifying that he had not held up or helped hold up any one that night and that it was proper to offer such testimony in rebuttal of appellant's alibi evidence.
People v. Molineux, 168 N.Y. 264, 61 N.E. 286, has frequently been quoted with approval by this court. There the rule as to the admissibility of proof of the commission of other crimes by the person on trial was clearly and concisely stated as follows:
"Generally speaking, evidence of other crimes is competent to prove the specific crime when it tends to establish: first, motive; second, intent; third, the absence of mistake or accident; fourth, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; fifth, the identity of the person charged with the commission of the crime on trial." [State v. Spray, 174 Mo. l.c. 582, 74 S.W. 846; State v. Bailey, 190 Mo. l.c. 280, 88 S.W. 733.]
It is obvious that proof of other crimes would have no tendency to prove the motive or intent which actuated appellant in the commission of the acts constituting the crime with which he stood charged in the information. Nor could it be said that such proof tended to show the absence of mistake or accident in the commission of such acts. Also proof that appellant robbed another person or other persons in the same city on the same evening could have no tendency in itself to identify appellant as the person who robbed Forgey. If proof of other crimes was admissible at all, it must have been because it tended to show a common or general scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tended to establish the fact of the commission of the other.
It certainly is not enough to show that the person on trial committed one or more other crimes of the same general nature in the vicinity of the place where he is charged with committing the crime for which he is on trial and that he committed such other crime or crimes at approximately the same time. To be admissible proof of the commission of another crime or other crimes must have some legitimate tendency to prove that the accused committed the crime for which he is being tried.
Almost the identical facts appear in State v. Sprav. supra. There the charge was robbery, as it is here. The prosecuting witness detailed the facts in relation to the robbery and identified Spray as the robber. Further facts are thus stated in the opinion.
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