State v. Brown

• Decision Date: 19 February 1913
• Citation: 153 S.W. 1027
• Parties: STATE v. BROWN.
• Court: Missouri Supreme Court

153 S.W. 1027

STATE v. BROWN.

Supreme Court of Missouri, Division No. 2.

February 19, 1913.

1. WITNESSES (§ 318) — CORROBORATION — SIMILAR STATEMENTS.

In general, it may not be shown that a witness on other occasions has made statements similar to those testified to; such evidence being competent only when it appears that the witness is endeavoring to misrepresent the facts by reason of his relation to the party or the cause.

2. WITNESSES (§ 395) — RE-EXAMINATION — CORROBORATIVE STATEMENTS.

A question asked a witness on cross-examination as to whether he had not talked the matter over with certain parties named before the trial was insufficient to authorize the prosecuting attorney on re-examination to ask the witness whether he had ever made any other than similar statements to those to which he testified.

3. CRIMINAL LAW (§ 1170½) — APPEAL — PREJUDICE.

Where the testimony given by two witnesses had been fully corroborated by other evidence, both in regard to the killing and the witnesses' identification of accused as the person seen at the time of the tragedy, defendant was not harmed by error in permitting the prosecuting attorney on re-examining the particular witnesses to ask them whether they had ever made any other than similar statements to those to which they testified.

4. CRIMINAL LAW (§ 775) — INSTRUCTIONS — ALIBI.

An instruction that, if there was any evidence which raised a reasonable doubt in the minds of the jury as to defendant's presence at the time and place where the crime was charged to have been committed, they should acquit him, was a proper charge on alibi.

5. CRIMINAL LAW (§ 720) — TRIAL — ARGUMENT OF PROSECUTING OFFICER.

Where it was claimed that accused with two others went to the cashier's office of a railroad company and killed deceased while attempting to hold up the employés in the office, statements by the prosecuting attorney in his opening argument, "This is a murder for money. It was for money. It was for blood money," were not error.

6. CRIMINAL LAW (§ 1171) — TRIAL — ARGUMENT OF PROSECUTING ATTORNEY — MISCONDUCT.

In a prosecution for homicide, defendant relied on alibi, and produced but a single witness beside himself who testified to facts showing that accused could not have participated in the killing. There was nothing to discredit the testimony of defendant's corroborative witness, yet the prosecuting attorney in argument stated that such witness deserved to be in the dock with the defendant. On objection being raised, the court directed defendant's counsel not to argue the objection, and overruled it. Held, that the remark was erroneous and prejudicial, and that the error was intensified by the court's ruling.

Appeal from Circuit Court, Jackson County; Ralph S. Latshaw, Judge.

Arthur Brown was convicted of murder in the first degree, and he appeals. Reversed and remanded.

The prosecuting attorney of Jackson county on December 20, 1911, filed an information in the criminal court of that county charging the defendant with murder in the first degree in the shooting and killing of Albert Underwood on December 1, 1911. At the January term, 1912, of said court, the defendant was tried, found guilty of murder in the first degree, and his punishment assessed at death. Timely motions for a new trial and in arrest of judgment were filed and overruled, and an appeal has been perfected to this court.

The facts disclosed by the evidence are as follows:

Albert Underwood, the deceased, was employed in the auditing department of the Missouri-Pacific Railway Company at its freight offices in the West Bottoms in Kansas City, Mo. His particular duties were to receive collections in the cashier's office of the said department on account of freight. The cashier's office was on the first floor of a three-story building; the entrance to same from the street being through a general hallway in which there were stairs leading to the upper floors. About 25 feet from this main entrance a door opens into the cashier's office where Underwood was employed; his desk being located in the southeast corner of the office to the right of the cashier's window. At the time of the killing a young man named Barnes was at work at a desk in the opposite corner to the right of where Underwood was employed. To the left of Barnes was a desk occupied by a man named Proctor, and behind the door which entered the room from the main hallway and near the corner was another desk occupied by a man named Pulhamus. Just in the rear of Underwood's desk was another occupied by a man named Brown, and near Brown's desk Clayton, another employé of the railroad, was standing. At about 5:40 o'clock on the evening of December 1, 1911, the door of the cashier's office leading from the main hall was opened, and one of the witnesses present states that three negro men entered, that two of them stopped just inside the door, and that the third, who was the only one seen by the other witnesses, was the defendant. He walked into the room behind the chair where Barnes was sitting, and with a revolver in hand said to Barnes, "Get into the vault, and be quick about it." The vault referred to was adjacent to the cashier's office. The defendant then shot at Barnes, and the bullet grazed his neck, passing through the right sleeve of his shirt. Defendant then struck Barnes as he was rising from his chair, and felled him to the floor. Turning to Pulhamus, who was partially behind the door, and pointing his pistol at him, defendant ordered him to get back into the vault. Pulhamus did so, backing towards the vault. While this was occurring, Underwood, the deceased, was standing near his desk, where he had been checking off freight receipts. The defendant then pointed his pistol at Underwood, saying, "Damn it, get back into the vault." Almost simultaneously with this command, the defendant fired the pistol, striking Underwood in one of his hands. Underwood exclaimed, "For God's sake, give me time to get into the vault!" With that the defendant shot again, striking and mortally wounding Underwood, who staggered out of the room into the vault. Of the persons employed with Underwood at the time of the shooting, the defendant was identified by Barnes, Pulhamus, Brown, and Clayton. In addition to Underwood, these were all of the persons in the room at the time, except one Proctor, who stated he was so frightened he did not stop to take a look at the man who was doing the shooting, but got out of the room as soon as he could after the trouble began. At the time defendant entered the room, there were lying around on the cashier's desk several hundred dollars in money and checks. Defendant had previously been employed in the same building, was familiar with the location and arrangement of the offices, and where the money was kept. Immediately after the shooting, defendant tried to get out of one of the windows, but, failing in this, turned and ran out of the door. In addition to those who witnessed the killing, and identified defendant, he is also identified by W. R. Lentz, the local agent of the railway company, who states that while he was in his office on the second floor of the same building in which Underwood was killed at about 5:40 p. m. a young man rushed in saying that, "The cashier's office was being held up and robbed;" that witness rushed out of his office, and ran down stairs, when he saw a negro man running through the hall towards the front door; that witness saw defendant at the police station on the following Monday, and identified him as the man he saw running through the hall; that witness went immediately after seeing the man run through the hall to the cashier's office, and found Underwood shot and his associate employés attempting to hold him up to keep him from falling on the floor; that witness called a physician and an ambulance, and subsequently Underwood was carried out on a stretcher, put in the ambulance, and conveyed to a hospital.

Vincent Kennedy, a clerk employed in one of the offices in the same building in which Underwood was killed, while sitting in his employer's office, heard two or three shots fired. He ran to the door, and partially opened same, and saw a negro man coming out of the door of the cashier's office. When the man came within four or five feet of witness, the latter saw that he had a pistol in his right hand and something in his left; that, upon the man seeing the witness, the former said, "Step back you son of a bitch, and don't move;" that the witness had a fair opportunity at that time to see the man, and identifies him as the defendant now on trial. A boy named Ward, also employed at the building where the killing occurred, testified that a few minutes before the shooting he saw defendant in the building, and had a conversation with him. Another witness named Oscar Underwood stated that a few minutes after the time testified to by Ward he saw the defendant and a janitor named Powell talking to each other in whispers in the toilet room at the end of the floor on which the cashier's office was located.

Defendant's principal witnesses to establish an alibi — which was the substantial defense in the case — are himself and a negro man named Lafe Fowler. The substance of defendant's testimony is that on the evening Underwood was shot, at 5:20 or 5:25 o'clock, defendant went to a building near the one in which the shooting occurred to collect a small sum of money due him from the janitor named Featherstone Powell. Failing to accomplish the purpose of his visit, defendant said to Powell, "I am going over to Lafe Fowler's" the latter being the janitor employed in what was known as the superintendent's building, which was near the one in which the shooting occurred; that Powell replied, "Go over and wait, and I will come by and pay you your money"; that defendant said, "All right," and started at once to Fowler's; that it was about 5:30 o'clock, or possibly a few minutes later, when he...