State v. Bagby

• Decision Date: 23 April 1936
• Docket Number: 34165
• Citation: 93 S.W.2d 241,338 Mo. 951
• Parties: The State v. Paul Bagby, Appellant
• Court: Missouri Supreme Court

93 S.W.2d 241

338 Mo. 951

The State v. Paul Bagby, Appellant

No. 34165

Supreme Court of Missouri

April 23, 1936

Appellant's Motion for Rehearing Overruled April 23 1936.

Appeal from Webster Circuit Court; Hon. C. H. Skinker Judge.

Affirmed.

H. P. Lauf and John O. Bond for appellant.

(1) When there is evidence tending to establish an alibi for defendant it is the duty of the court to instruct the jury that if they, the jury, have a reasonable doubt that defendant was present at the commission of the offense they, the jury, should acquit the defendant. State v. Kelly, 16 Mo. 216; State v. Kaplan, 167 Mo. 305; State v. Johnson, 16 Mo.App. 556; State v. Edwards, 109 Mo. 315. (2) It is error for the court to instruct the jury that defendant's alibi must be established affirmatively, as such instruction misleads the jury as to the probative force of the evidence which is sufficient to establish said defense, and such error is not cured by a general instruction telling the jury the State has burden of proof beyond a reasonable doubt. State v. Kelly, 16 Mo.App. 217. (3) It is reversible error for the court to permit the defendant to be impeached by showing former convictions in a police court on charges of vagrancy and for disturbing the peace. State v. Mills, 199 S.W. 134; State v. Roberts, 278 S.W. 973; Sec. 1752, R. S. 1929. (4) The jury by its verdict found defendant guilty of the Habitual Criminal Act and since no instructions were given by the court on the Habitual Criminal Act the verdict of the jury is void, it being the duty of the court to fully instruct the jury on every fact placed in issue by the plea of not guilty and though defendant does not dispute a former conviction that issue must be submitted to the jury on proper instructions. State v. McBroom, 238 Mo. 499; State v. Schneider, 29 S.W.2d 700; State v. Breese, 33 S.W.2d 922; State v. Dalton, 23 S.W.2d 5; Secs. 3662, 4461, R. S. 1929; State v. Hicks, 33 S.W.2d 922. (5) Where State's attorneys are guilty of cross-examination of defendant and his witnesses on irrelevant matters and ask questions which are insulting and prejudicial to defendant, the judgment will be reversed, especially when the conduct of the State's attorneys was sanctioned by the court over the objection of defendant. State v. Pierson, 56 S.W.2d 120; State v. Prendible, 165 Mo. 329; State v. Rose, 178 Mo. 35; State v. Teeter, 239 Mo. 485; State v. Coleman, 186 Mo. 158; State v. Kyle, 259 Mo. 412.

Roy McKittrick, Attorney General, and Franklin E. Reagan, Assistant Attorney General, for respondent;

Charles Farrar of counsel.

(1) The general assignments of error in paragraphs 1, 3, 5 and 6 of appellant's motion for new trial are insufficient to preserve such matters for review. State v. Early, 49 S.W.2d 1060; State v. Golden, 51 S.W.2d 91; State v. Vigus, 66 S.W.2d 854; State v. Shawley, 67 S.W.2d 86; State v. Pippey, 71 S.W.2d 722; State v. Copeland, 71 S.W.2d 750; State v. Sinovich, 46 S.W.2d 877; State v. Austin, 29 S.W.2d 686. (2) The filing of the amended information by inserting therein a former conviction was proper. State v. Dixon, 253 S.W. 747; Sec. 3508, R. S. 1929; State v. Hall, 279 S.W. 102; State v. Long, 22 S.W.2d 812. (3) The cross-examination of a witness by the court, without objection of the part of appellant's counsel, is not properly preserved for review in this court. State v. Stephens, 216 S.W. 550. (4) The production of guns and articles of clothing in the courtroom for the purpose of identification is proper. (5) The cross-examination of witness Bell was proper. State v. Nasello, 30 S.W.2d 140; State v. Albritton, 40 S.W.2d 680; State v. Murray, 292 S.W. 438; State v. Wade, 270 S.W. 301; State v. Barnes, 29 S.W.2d 158; State v. Smith, 237 S.W. 482. (6) The information is sufficient. State v. Shuls, 44 S.W.2d 94.

OPINION

Ellison, J.

The appellant was convicted of robbery in the first degree by means of a deadly weapon in the Circuit Court of Webster County on change of venue from Dallas County, and his punishment assessed by the jury at imprisonment in the penitentiary for a term of twenty-five years. The charge was that he robbed Milum Bledsoe, cashier of the First State Bank of Long Lane in Dallas County. His defense was an alibi. The principal issue of fact in the case turned on his identification as one of the robbers. The assignments urged on this appeal complain of error in the cross-examination of the appellant and his witnesses; in the admission of incompetent evidence; in the failure properly to instruct the jury on all the law of the case; and that the verdict was against the evidence, the result of passion and prejudice, and fatally defective.

Mr. Bledsoe, the bank cashier, with his wife also operated a combined gasoline filling station and store. Their living quarters were over the store. The bank was about thirty feet distant across the street. On the night of December 22, 1932, they were playing a game called rook at their home with two acquaintances, Messrs. Leverett Cansler and Earl Vest. About eight-forty-five o'clock two men knocked at the door and when Mr. Bledsoe appeared said they wanted to buy gasoline. Then they drew pistols and announced it was a "holdup." One of the men gave Mr. Bledsoe a flashlight and forced him to lead the way to the bank. The other man remained in the apartment and kept the other members of the party covered.

At the bank the robber made Mr. Bledsoe open the safe and the vault. He took all the money there amounting to about $ 340, of which perhaps $ 40 or $ 50 was in dimes wrapped up in $ 5 lots; also some bonds and notes. While so engaged someone on the outside shook the door and said "Hurry, there is somebody in sight." Presently they returned from the bank to the apartment where the robber put the box containing the loot on the back porch and called out to someone "here it is, come and get it." From this Mr. Bledsoe concluded three persons were involved in the robbery: the man who took him to the bank, the one who remained with the others in the apartment, and an unseen person on the outside. When they got back to the apartment the two robbers compelled Mr. Bledsoe, his wife and their two guests to go to the bank and there locked them in the vault. They were confined for some little time until Mr. Bledsoe by the use of his pocketknife was able to unscrew certain parts of the lock and open the vault door. He estimated it was nearly ten o'clock by the time they had released themselves and returned to their apartment.

On the identification of the robbers: Mr. Bledsoe testified he never saw above the shoulders of the robber who took him to the bank, but he was wearing boots, light colored breeches and a close fitting jacket of dark color. During the course of the robbery this robber did a good deal of talking, at one time saying "You foiled us two weeks ago, but we are here to get the money and are going to get it." A few days later when Mr. Bledsoe viewed the appellant after he was under arrest and confined in the jail at Springfield he thought he remembered the appellant's voice was like that of the robber who locked him in the bank vault, and of one of two men who fifteen days before the robbery had come to his home about eleven o'clock at night and purchased some gasoline from his daughter and her cousin. It was Mr. Bledsoe's opinion that in voice, actions, height and general appearance the appellant Bagby was very much like the robber who "handled" him, but he would not positively swear to it. He also testified that about six or seven o'clock in the evening, two or three hours before the robbery, the appellant, with another man, had been at his filling station and purchased two quarts of oil. Their car was a black or dark colored coupe. At that time the appellant had a small black moustache and was wearing boots and light breeches. On redirect examination certain boots, breeches and a jacket admitted to belong to the appellant, were exhibited to Mr. Bledsoe and he said they were like the apparel worn by the man who robbed the bank. During his entire testimony he did not attempt to describe the other robber, the one who kept Mrs. Bledsoe and their guests corralled in the apartment, except to say the man did not have on an overcoat.

Mrs. Bledsoe definitely identified the appellant as the robber who took her husband to the bank and came back with him. Being asked if the appellant seated in the courtroom was the robber she said "Yes, sir, it sure was; I would know him anywhere any time." She also said she recognized him when she viewed him in the jail at Springfield two days later, and that there was not a bit of doubt in her mind as to his identity. She admitted, however, that she was much excited during the holdup and that she could not remember clearly about the clothes the appellant wore except that she thought he had boots on. But she insisted she knew his face and remembered he was wearing a wide-brimmed black hat with a high crown, uncreased. She did not notice that he had a moustache. The robber who remained in the apartment wore a dark overcoat, cap, black oxford shoes and faded blue overalls. When they got out of the bank vault and returned to the apartment it was nine-forty-five P. M.

A neighboring storekeeper, Mr. Ray Bird, also saw the appellant and another man at the Bledsoe filling station about six-thirty o'clock the evening of the robbery. The appellant was wearing boots, light colored breeches, a light coat and a light hat. He thought the jacket offered in evidence was similar to the one appellant was wearing at the time and said the man with the appellant was Jimmy Ryan, as he discovered the next day when Ryan was brought to Long Lane for identification.

Paul Peel was a farmer...