State v. Brown

• Citation: 270 S.W. 275
• Decision Date: 19 March 1925
• Docket Number: 26038
• Parties: STATE v. BROWN
• Court: United States State Supreme Court of Missouri

270 S.W. 275

STATE v. BROWN

No. 26038

Supreme Court of Missouri, Second Division

March 19, 1925

Bass & Bass, of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty Gen., for the State.

OPINION

WHITE J.

Will Brown, alias 'Sweet Mike,' and Sonny Pearson, in the circuit court of the city of St. Louis, were jointly charged by information with larceny from the person, in that they took from John Fetsch the sum of $ 200. On a severance Brown was tried November 21, 1923, found guilty by a jury, and his punishment assessed at imprisonment for seven years in the penitentiary.

The evidence shows that August 13, 1923, John Fetsch and his son Pete boarded a Broadway car at Broadway and Union Market in the city of St. Louis. The father got on ahead of the son. A large, heavy-set negro, afterwards identified as Sonny Pearson, paid two fares, and got on ahead of Fetsch. A tall slender negro, afterwards identified as the defendant immediately followed John Fetsch. Pete Fetsch boarded the car immediately behind that negro. The heavy-set negro in front stopped between the rails at the pay box. John Fetsch paid his fare, and attempted to pass the negro, who blocked the way by twisting around. At the same time the tall slender negro kept pushing at Fetsch, who suspected, he testified, a prearranged game between the two negroes. He turned, and asked his son if he saw the fellow next to him. His son could not see the negro's hands, but replied that the negro had taken the senior Fetsch's money. Both immediately grappled with the negro, who dropped Fetsch's purse, containing $ 250, on the floor. The negro drew a knife; struck and cut Pete Fetsch on the arm. Another passenger, named Mason, in coming to the assistance of young Fetsch, was also cut by the negro, who jumped off the car; the door being still open. The Fetsches and Mason hurried off, and pursued him for a considerable distance to the levee, where he finally escaped them. Several other persons joined in the chase. After Brown had got off the car and the chase started, Pearson told the conductor that he wanted to get off; that the other fellow got his purse too. The incident occurred about 7:30 in the morning. About 10:30 Pearson and Brown, who were known to the police, were arrested and identified by the Fetsches as the robbers.

The defense was an alibi. Rosetta Brown, wife of the defendant, testified that her husband had been drinking too much, and had been home all night and had not left. A keeper of a pool room and soft drink stand on the levee testified that he saw the chase as the Fetsches and others pursued the negro, and that the man they were after was not the defendant. On this evidence the jury found the defendant guilty, and he appealed.

I. A number of errors are assigned to the giving of instructions.

Objection is made to the main instruction, No. 2, which authorized conviction if the defendant took the whole or any part of the money, of the value of $ 30 or more. No specific error is pointed out in that instruction and we discover none.

Instruction No. 5, on circumstantial evidence, is objected to, though it is correct in form as to that feature of the case. The objection is to the closing clause of the instruction, 'though no witness has testified of his own knowledge as to actually seeing the defendant take the money and property from the pocket of the said John Fetsch.'

It is argued that this assumes that the defendant took the money. To tell the jury that no one saw the defendant commit the crime is to tell the jury that there is no direct evidence that a crime was committed; it assumes nothing. See State v. Dworkin, No. 26011, 271 S.W. 477, decided at this term of the court.

Objection is made to instruction No. 6, which tells the jury that they...