State v. Buschman

• Decision Date: 11 June 1930
• Docket Number: 30135
• Parties: The State v. Joseph Buschman, Alias Arlington J. Folsom, Appellant
• Court: Missouri Supreme Court

29 S.W.2d 688

325 Mo. 553

The State v. Joseph Buschman, Alias Arlington J. Folsom, Appellant

No. 30135

Supreme Court of Missouri

June 11, 1930

Appellant's Motion for Rehearing Overruled, April 7 1930. Appellant's Motion to Transfer to Banc Overruled June 11, 1930.

Appeal from Circuit Court of City of St. Louis; Hon. Harry A Rosskopf, Judge.

Affirmed.

Paul A. Richards and H. E. Grossenheider for appellant.

The court erred in permitting the witness Nicklin to testify, over the objection of the defendant, that he had identified the defendant at the police station, the witness not having been impeached. State v. Baldwin, 297 S.W. 10.

Stratton Shartel, Attorney-General, and Henry Depping, Assistant Attorney-General, for respondent.

(1) Appellant complains of certain remarks of the trial judge, in the presence of the jury. There is no merit to this contention. No criminal case should be reversed unless it is evident that error has been committed prejudicial to the rights of the defendant. State v. Williams, 274 S.W. 53; Sec. 3908, R. S. 1919; State v. Murray, 292 S.W. 437. (2) We see no logical reason why the witness who was robbed should not testify that he identified defendant at the police station. State v. Tighe, 289 S.W. 829.

Cooley, C. Davis and Henwood, CC., concur.

OPINION

COOLEY

Defendant and two others were charged by information in the Circuit Court of the City of St. Louis with the crime of robbery in the first degree. A former conviction of robbery in the first degree was alleged against defendant, thus making applicable the punishment prescribed by Section 3702, Revised Statutes 1919. A severance being granted, defendant was tried alone and was found guilty as charged, and his punishment assessed at life imprisonment. He appeals.

A brief statement of the facts will suffice for an understanding of the only questions urged upon this appeal.

The robbery was committed on Saturday, August 13, 1927, in the office of the Nicklin Tannery Company, a corporation, in St. Louis. About 12:30 P. M., Mr. Nicklin, president of the company, was in the office making up the weekly payroll for employees when several men, Nicklin said as many as four, all armed with pistols, appeared and by force and threats took from Nicklin $ 300.75 in money, part of which belonged to him and part to the company. At the trial Nicklin identified defendant as one of the robbers, stating that defendant was the first one who appeared at the office, that at the point of a pistol he had demanded the money, and that he was not masked at the time.

O'Dell Slattery was a witness for the State at defendant's preliminary examination, but was dead at the time of the trial, and his testimony given at the preliminary hearing was introduced at the trial. It was to the effect that at the time of the robbery he worked at a blacksmith shop at the rear of the Nicklin tannery; that in the forenoon of the day of the robbery, defendant and several others came to the shop, armed themselves with pistols and watched Nicklin drive away and later return in his car. Nicklin's testimony shows that he had gone to a bank for the payroll money. Slattery testified that he saw defendant and at least one other go into the tannery building, one of the party remaining outside, and "after they got back they come through the shop with the money in a sack." "They came running in." Then they got in a car and drove away. Slattery testified that he knew the men, including defendant, by sight, having seen them before, and was certain in his identification.

Three police officers testified to statements, which they said had been voluntarily made to them by defendant, acknowledging his participation in the robbery. It was shown, in fact admitted, that defendant had previously been convicted on a plea of guilty of robbery in the first degree and had served a term in the penitentiary therefor and had been discharged.

Defendant testified, denying his presence at or participation in the robbery, and by himself and one witness gave testimony tending to prove an alibi.

Defendant urges in this court but two grounds for reversal of the judgment, viz., the admission of certain evidence, and a remark of the trial court made in overruling defendant's objection to the evidence.

Witness Nicklin had testified to the circumstances of the robbery and that after the robbers left he had reported it to the police. Then followed the testimony and the remark of the court complained of, which will be best understood if set out as it appears in the bill of exceptions:

"Q. When did you next hear anything or see anything of these men? A. I saw them on Sunday morning at police headquarters, Central District.

"Q. Who did you see?

"Mr. Richards (defendant's counsel): We will object to his testifying as to anybody he saw at police headquarters. It is immaterial, irrelevant, incompetent; it doesn't make any difference whether he saw them or not. The only question is whether he can identify them here at this time.

"The Court: He may answer.

"Mr. Richards: It doesn't tend to prove or disprove any issue in the case whether he saw him at headquarters or not.

"The Court: He may answer. I am going to let the Supreme Court rule again on that Baldwin case. If that is good law they will have to show me.

"Mr. Richards: We object to the remark of the court on the ground it indicates an opinion that the defendant will be convicted in this case, that being the only method by which the case could go to the Supreme Court. Defendant will ask that a mistrial be declared.

"The Court: Overruled.

"To which action and ruling of the court defendant by his counsel then and there duly excepted and still excepts.

"A. They lined up four men there, one of which I recognized.

"Q. Which one did you recognize?"

Objection was here made on the ground that "identification in the police station is totally inadmissible," which was overruled and exceptions saved. The question was not answered. Then follows:

"Mr. Richards: May it be understood that the same objection applies to these questions throughout?

"The Court: Yes.

"Mr. Stack (State's counsel): Q. Who did you see there? A. I saw the defendant there.

"Q. This defendant, Joseph Buschman, alias Arlington J. Folsom? A. Yes, sir."

The evidence admitted over defendant's objection and of which he now complains, was the testimony of witness Nicklin that he saw and recognized defendant at the police station the day after the robbery. Defendant contends that such testimony was merely a bolstering up of Nicklin's testimony identifying defendant at the trial as one of the men who robbed him and that it was incompetent and prejudicial under the ruling of this court en banc in State v. Baldwin, 317 Mo. 759, 297 S.W. 10. In determining this question it is necessary to keep in mind just what the witness Nicklin did and did not testify, as well as to examine what was actually decided in the Baldwin case.

Nicklin's challenged testimony was only that he saw and recognized defendant at the police station. He did not testify, nor did any other witness, that he pointed out defendant or by word, sign or act communicated or indicated to any one the fact that he recognized defendant. It is clear from his quoted testimony that he used the word "recognized" with reference to his own mental process, meaning merely that he knew or perceived defendant to be one of the men in question. The testimony condemned as incompetent and prejudicial in State v. Baldwin, supra, was testimony proving acts of the witness pointing out that defendant at the police station as the man who had robbed him, which acts were the same in effect and in principle as declarations of the witness that defendant was the man who had robbed him.

The Baldwin case was a robbery case where, as here, the question of defendant's identity was a disputed one. In that case Smith, the prosecuting witness, testified without objection that he had gone to the police station two days after the robbery and was shown a large number of photographs from which he picked out one. Then, over defendant's objections, he was shown the photograph which he testified was the one he had picked out and was a picture of defendant. Over defendant's objections the State was permitted to prove by the photographer who had taken the picture that it was a photograph of defendant, a true picture of him when taken, and that it had been kept in the Bertillon room at police headquarters. The photograph was then introduced in evidence, defendant still objecting. In discussing the question, and holding the evidence incompetent as being evidence offered to bolster up Smith's testimony on the trial as to the identity of defendant, when the witness had not been impeached or discredited, the court treats the evidence relative to Smith's acts at the police station as equivalent to an extra-judicial statement or declaration of the witness that defendant was the man. This is apparent throughout the opinion. In the beginning of the discussion of this point the court says:

". . . Smith (in fact and in practice) says to the jury that, 'You should believe my testimony as to identity, because I identified his picture for the police force, two days after the robbery.'"

It then says that as there was no attempt to impeach or discredit Smith his statement as to his prior act of identifying the picture was irrelevant, citing People v. Jung Hing, 212 N.Y. 393, 106 N.E. 105, Ann. Cas. 1915D, 333, quoting the statement of the annotator in Ann. Cas. 1915D, 333, 338, as follows:

"The proposition goes unchallenged in every jurisdiction save one that the prior consistent statements of a witness who has not been impeached are not admissible in evidence for the...