State v. Albritton

• Decision Date: 03 July 1931
• Citation: 40 S.W.2d 676,328 Mo. 349
• Parties: The State v. Hunter Albritton and Orville Taylor, Appellants
• Court: Missouri Supreme Court

40 S.W.2d 676

328 Mo. 349

The State v. Hunter Albritton and Orville Taylor, Appellants

Supreme Court of Missouri

July 3, 1931

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...