State v. Blackmore

• Decision Date: 14 April 1931
• Docket Number: 30935
• Parties: The State v. Thurman Blackmore and Marshall Godsey, Appellants
• Court: Missouri Supreme Court

38 S.W.2d 32

327 Mo. 708

The State v. Thurman Blackmore and Marshall Godsey, Appellants

No. 30935

Supreme Court of Missouri

April 14, 1931

Rehearing Denied April 14, 1931.

Appeal from Cooper Circuit Court; Hon. H. J. Westhues Judge.

Affirmed.

Ross E Feaster, W. G. Davis and Henry P. Lay for appellants.

(1) The evidence which the State offered in the attempt to identify the defendants as the men who robbed the bank was wholly insufficient to support the verdict. "Mere suspicion of guilt, however strong, is not sufficient to authorize conviction of crime." State v. Matticker, 22 S.W.2d 647; State v. Buckley, 309 Mo. 38; State v. McMurphy, 25 S.W.2d 79. (2) It was reversible error for the prosecuting attorney to ask defendants' witnesses if they had not heard the defendants had robbed the Kingsville Bank. This poison having been injected into the minds of the jury it could not be removed by the action of the trial court. State v. Horton, 247 Mo. 657; State v. Webb, 254 Mo. 414. (3) The misconduct of the assistant prosecuting attorney in his closing argument in denouncing the defendant Blackmore as "a malefactor of great wealth," and in expressing his belief that defendants' guilt had been proven, was reversible error. State v. Dixon, 253 S.W. 746; State v. Conner, 252 S.W. 713; State v. Hess, 240 Mo. 147; State v. Reppley, 278 Mo. 333, 213 S.W. 477; State v. Goodwin, 217 S.W. 264. (4) The judgment should be reversed because of the misconduct of the prosecuting attorney, even though in some instances the trial court sustained defendants' objections thereto. The poison so injected cannot be so easily removed. The evidence was so weak as to indicate that the verdict was the result of such misconduct. State v. Dietz, 235 Mo. 332.

Stratton Shartel, Attorney-General, and Carl J. Otto, Assistant Attorney-General, for respondent.

(1) The contention that there was a failure of identification of defendants is without merit. The testimony of the cashier of the robbed bank as to the general description of the robber and to the effect that he had seen a man since the robbery who looked very much like him, and that that person was the defendant Godsey, was entitled to go to the jury for any weight they deemed it worth. State v. Franke, 159 Mo. 542; State v. Cushenberry, 157 Mo. 179; State v. Babb, 76 Mo. 504. The direct identification of both defendants, together with other circumstances in the case, made a submissible case for the jury whose province it was to weigh the evidence. State v. Kowertz, 25 S.W.2d 113; State v. Riddle, 23 S.W.2d 179; State v. Taylor, 18 S.W.2d 474; State v. Kowertz, 297 S.W. 358; State v. Higgins, 278 S.W. 977; State v. Bray, 246 S.W. 921. Appellants' complaint that improper cross-examination of defendants' character witnesses was allowed is without merit. (2) The testimony indicates that the question was asked by the prosecuting attorney in good faith, and the cross-examination was limited by the court to whether or not the witness had heard rumors of the implication of the defendant prior to the date of the commission of the crime here charged; the witness of necessity replied in the negative. The defendant was not prejudiced thereby. It is permissible to cross-examine the defendant's character witnesses as to hearing of rumors of misconduct of the defendant to test the credibility of the witness, and is a matter within the trial court's discretion. State v. Affronti, 238 S.W. 111; State v. Cooper, 271 S.W. 473; State v. Gurnee, 274 S.W. 60; State v. Pine, 18 S.W.2d 49; State v. Harris, 22 S.W.2d 1050; 2 Wigmore on Evidence, sec. 988, and Missouri cases cited. Moreover, there was no request for further reprimand, nor that the matter objected to be withdrawn. State v. Gensler, 295 S.W. 1081; State v. Kelley, 284 S.W. 801. (3) Reversible error is predicated upon the remarks of the prosecuting attorney in referring to defendant Blackmore as "that malefactor of great wealth," and in expressing "his belief that his guilt had been proven." The remark does not constitute reversible error. State v. Bell, 300 S.W. 504; State v. Lucas, 292 S.W. 717; State v. Barrington, 198 Mo. 91. The remark of the prosecuting attorney was not such an expression of his personal belief in the guilt of the defendant, that the jury might infer therefrom that he had reasons or information other than that developed by the evidence from which he obtained his belief of the guilt, and by which they might be improperly influenced. On the contrary it was an inference which he might properly draw from the evidence, and as such, did not constitute error. State v. Hart, 237 S.W. 480; State v. Peak, 237 S.W. 471; State v. Midkiff, 278 S.W. 683. Moreover, in each instance the prosecuting attorney was admonished, and no further reprimand was requested by the defendants. State v. Smith, 281 S.W. 40; State v. Story, 274 S.W. 56; State v. Gensler, supra; State v. Kelley, supra.

Cooley, C. Davis, C., concurs; Westhues, C., not sitting.

OPINION

COOLEY

By an information filed in the Circuit Court of Johnson County appellants and one Charley Jones were jointly charged with robbery in the first degree, the information charging that they had robbed the Bank of Knobnoster on March 15, 1928. They were granted a change of venue to Cooper County. Jones pleaded guilty. Appellants Blackmore and Godsey were tried jointly in March, 1929, and convicted, and each was sentenced to ten years' imprisonment in the penitentiary. They have perfected a joint appeal to this court.

Numerous alleged errors are set forth in appellants' motion for a new trial, of which, however, their counsel in their brief filed here frankly say they are now urging but three, viz., that the evidence was insufficient to sustain a conviction; the action of the prosecuting attorney in propounding certain questions in the cross-examination of some of defendants' character witnesses; and certain remarks of the prosecutor in his closing argument to the jury. The claimed insufficiency of the evidence is in the identification of appellants as participants in the robbery.

In the forenoon of March 15, 1928, the time being estimated at about 9:30 to 9:45, a large automobile, described by some witnesses as a Gardner "straight eight," containing four men, stopped in front of the bank. One remained in the car behind the steering wheel. The other three entered the bank. One at least of those three exhibited a gun. The cashier and assistant cashier, who seem to have been the only persons in the bank, were ordered to "stick 'em up quick," which they did, and were then compelled to lie on the floor while the robbers proceeded to ransack the bank, securing $ 4450.25. They left the bank, re-entered the waiting car and drove rapidly out of town, going east.

The cashier, Mr. Kendrick, testified that he got a general view of the men who came into the bank; that they were masked; that only in a general way could he describe the appearance of the man who ordered him to lie down; that he was a broad shouldered, tall man, of normal build, walked "kind of swingy," and had dark eyes; he had a gun pointed at witness; that defendant Godsey looked very much like that man, but he could not identify him positively.

Frank Shepherd, assistant cashier, described one of the men who entered the bank as of medium build and with dark, keen eyes. Asked if he had seen him since he answered: "I couldn't positively swear that I have." He also testified: "His shoulders were kinder stooped a little, I believe." He was not permitted to state whether or not he had since seen a man he believed to be that man.

Robert Caldwell, a colored man twenty-one years of age who lived at Knobnoster, saw the man who waited in the car while the robbery was in progress. He walked by the car, within four or five feet of it, and "kinda slacked up" and looked at the car and the man in it. He testified that the man was not masked, had on a big overcoat and had a little moustache, he couldn't exactly tell what color; the man was smoking a cigarette "and he raised up." He further testified that he thought he saw that man again at Warrensburg, where defendants' preliminary hearing was held several weeks after the robbery.

"Q. Do you know the man you saw at Knobnoster that day? A. Yes, sir, I think so.

"Q. Do you see him here? A. I think so.

"Q. Can you point him out? A. That looks like him there. (Indicating defendant Blackmore.) . . .

"Q. Do you know this man's name? A. No, sir.

"Q. You know his face, but don't know his name? A. Yes, sir."

On cross-examination he said he had seen a man at Warrensburg that he thought was the same man, but didn't tell any one there; that he had rumors that he would be killed if he told -- it was talked "around town," not by defendants.

"Q. You did tell Sheriff Lane (at Warrensburg) that you didn't know either one of these boys? A. I didn't tell him exactly that . . . I told him I didn't know exactly and he never put me on the stand . . .

"Q. You never saw Mr. Blackmore? A. I saw him one time in Warrensburg and one time here, and I saw him in the car out there.

"Q. You don't know whether he was in the car or not, do you? A. I said I thought he looked like the fellow that was in the car."

A witness for defendants testified that Caldwell told him after the preliminary that he had been at Warrensburg, but couldn't identify defendants, "or words to that effect." That witness and the (then) sheriff testified that Caldwell seemed frightened at the time of the preliminary.

Ira Michael, night watchman at Knobnoster, saw the Gardner car standing in front of the bank and noticed the man behind the steering wheel. The engine was running. He pointed out Blackmore as the man he thought he had so seen. He...