State v. Bray
| Decision Date | 09 December 1922 |
| Docket Number | 23727 |
| Citation | 246 S.W. 921 |
| Parties | STATE v. BRAY |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Ray County; Ralph Hughes, Judge.
Affirmed.
Alva Bray was convicted of robbery in the first degree, and he appeals. Affirmed.
George W. Crowley and John C. Jacobs, both of Richmond, for appellant.
Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty Gen., for the State.
REEVES, C. RAILEY and WHITE, CC., concur. PER CURIAM. The foregoing opinion by REEVES, C., is adopted as the opinion of the court. All concur.
Statement.
Appellant was convicted of robbery in the first degree and sentenced to imprisonment in the penitentiary for a term of five years. After unavailing motions for a new trial and in arrest of judgment, he appeals.
The information was in two counts, each charging that appellant had robbed one J.H. Edwards, on or about November 3, 1921; the one alleging "by force and violence to the person," and the other "by putting the said J. H. Edwards in fear of some immediate injury to his person."
The testimony showed that the prosecuting witness was engaged in the baking and confectionery business at Richmond, and was so engaged on the evening of November 3, 1921; that on this date he left his place of business about 11:30 p.m. for his home, a few blocks distant, and that he carried $ 60 in currency in his pockets and a silverine watch, valued at about $ 5. Just before reaching his home, he was assaulted and robbed, the money and watch being taken. He positively identified appellant as his assailant.
There was other testimony for the state in corroboration of the prosecuting witness.
Appellant denied that he had robbed the prosecuting witness and testified that he was elsewhere in the same city at the time of the robbery. In this, he was corroborated by several witnesses.
Appellant complains here that the evidence was not substantial as to his identity in connection with the robbery; that the prosecuting attorney made improper argument to the jury; that the state failed to prove the date when the robbery was committed; and that the court erred in giving instruction No. 2. These questions, with other salient facts, will be discussed in the opinion.
Opinion.1. The complaining witness positively identified appellant as the man who had robbed him. He testified in the cross-examination that the robber wore a mask over his eyes, but that his mouth and chin were exposed, and that it was the mouth and chin of appellant. He said also that he had a view of the robber as he ran away, and that he identified the form and shape as that of the appellant.
A few minutes after the assault was committed, an automobile started from a point in the direction the assailant had run, and the peculiar noise of the car corresponded with that of an auto driven by appellant in the vicinity about the same time. There was substantial testimony on the question of identity. State v. Affronti (Mo. Sup.) 292 Mo. 53, 238 S.W. 106; State v. Lasson (Mo. Sup.) 292 Mo. 155, 238 S.W. 101; State v. McNeal (Mo. Sup.) 237 S.W. 738; State v. Brown (Mo. Sup.) 290 Mo. 177, 234 S.W. 785; State v. DePriest, 288 Mo. 459, 232 S.W. 83; State v. Lippman (Mo. Sup.) 222 S.W. 436.
2. In his argument to the jury the prosecuting attorney said that appellant had seen complaining witness put his money in his pocket on the night of the robbery. Upon objection, the court ruled that such an inference could be properly drawn from the evidence. It was in evidence that the prosecuting witness had placed the money in his pocket while in his store, under such circumstances that he could have been in the store a few minutes previously. The argument was made as an inference, and the court so said. Appellant was not harmed by this argument, as the prosecuting attorney had "the legal right to impress his own opinion as to what the evidence tends to show." State v. Gallagher (Mo. Sup.) 222 S.W. 465.
3. The complaint that the state failed to prove the date when the offense was committed is without merit, under the circumstances of this case. The state did fail to make this proof, but appellant did not stand on his demurrer at the close of the state's evidence; but, being overruled, he proceeded, to introduce his own evidence. Under such circumstances, he waived his demurrer as directed against the state's evidence and took the chance of strengthening the state's case. State v. Selleck (Mo. Sup.) 199 S.W. 129; State v. Mann (Mo. Sup.) 217 S.W. 67; State v. Belknap (Mo. Sup.) 221 S.W. 39; State v. Lippman, supra; State v. Jackson, 283 Mo. 18, 222 S.W. 746; State v. Martin, 230 Mo. 680, 700, 132 S.W. 595.
The appellant's evidence showed...
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