State v. Carr

• Decision Date: 03 December 1923
• Docket Number: No. 24227.,24227.
• Citation: 256 S.W. 1043
• Parties: STATE. v. CARR.
• Court: Missouri Supreme Court

256 S.W. 1043

STATE. v. CARR.

No. 24227.

Supreme Court of Missouri, Division No. 2.

December 3, 1923.

Appeal from Circuit Court, Washington County; Frank Kelly, Judge.

Russell Carr was convicted of a felony, and he appeals. Reversed and remanded.

Bass & Bass, of St. Louis, and Jas. Booth, of Pacific, for appellant.

Jesse W. Barrett, Atty. Gen., and Robert W. Otto and Allen May, Asst. Attys. Gen., for the State.

HIGBEE, C.

The amended information charges in substance that on August 5, 1920, the defendant, Russell Carr, and his wife, Nellie Carr, feloniously assaulted Lacy Coghill, cashier of the Bank of Caledonia, a corporation in the village of Caledonia in Washington county, he being then and there in charge of said bank, and by force and violence to the person of said Coghill, and by putting him in fear of immediate injury to his person, feloniously did rob, steal, take, and carry away $2,900, the personal property of said bank then and there in the custody of said Coghill, against the peace and dignity of the state.

On the first trial in December, 1921, Mrs. Carr was acquitted, but the jury disagreed as to the guilt or innocence of Russell Carr. On the second trial in March, 1922, the defendant was found guilty, and sentenced to the penitentiary for a term of five years, from which he appealed.

Charles Harris and Emmett Hurry robbed the bank, but the state claims the robbery was inspired by the defendant and his wife; that they entered into a conspiracy with Harris and Hurry, in pursuance of which they, Harris and Hurry, committed the robbery, and that Carr and his wife were present, aiding and abetting the felony. Harris was arrested within a few days, tried, found guilty, and sentenced in August, 1921, to the penitentiary for a term of 30 years, but was not sent to the penitentiary. He was the chief witness for the state at the trials of the defendant, who was not arrested until more than a year after the robbery.

Harris testified in substance that he lived at Elvins, in St. Francois county, in June, July, and August, 1920; that on July 4, 1920, the defendant Carr met him at a picnic, and talked with him about robbing the bank, saying it would be easy; that the bank had no alarm, and there were $7,000 or $8,000 in it. There was another conversation about July 15, in which they talked over the matter, and Carr asked him to come and bring some one "to pull the job." Again, on August 4, Carr came down there, talked the job over, and said he wanted witness and somebody else to rob the bank. Witness got: Emmett Hurry, and they went with defendant in his automobile. Witness and Hurry, at Carr's suggestion, left the automobile when about a mile and a half from Caledonia; walked into the village, and stayed over night with the defendant. They talked the matter over that evening with Carr and his wife. Carr said it was an easy job, that he would guard the outside, and that Harris and Hurry would do the job. The next day, about 10 o'clock in the morning, Mrs. Carr went to get a loaf of bread, and reported the streets clear. After that Carr and his wife went to town, and in a little while they returned, and said the streets were clear, and for us to go out the back, and they would go out the front. Carr said he would have his car ready, and went to town, and we went out the back way. He told us to go down the Webster road, and he would give us a sign when we came to the bank. That Hurry walked in front, and he, Harris, followed in Hurry's steps, and poured red pepper in their tracks (pepper furnished by Mrs. Carr to prevent the dogs tracking them), and when they got on Main street they saw Carr just before they went into the bank; that Carr motioned them to come to the bank, putting his hand over his head; that they went into the bank, found Lacy Coghill there, and told him to stick up his hands; that they put him in the vault, tied his hands and feet, and blindfolded him; that they took the money, not knowing how much it was, locked Coghill in the vault, went outside, and walked down Main street to the picnic grounds (the place appointed), sat down at the gate, and in about 10 minutes Carr and his wife drove up in their car, took them in and drove about a mile and a quarter on the Bismark road, where Harris and Hurry got out. Carr told them Coghill was out of the vault. Harris and Hurry had the money in a sack. They went into the woods, and hid the money under a log from which a tie had been cut, and then walked across the country to their homes in Elvins. Harris was arrested the following Saturday, and put in jail at Potosi. He was afterwards tried, convicted, and sentenced to 30 years in the penitentiary. He testified at his trial, denying any connection with the robbery, and admitting that he had been convicted of manslaughter in the fourth degree and paroled. He was released from jail about the 1st of September and went home. Carr and his wife came to Elvins, and wanted witness to go and show them where the money was. Witness, Carr, and his wife, drove to the place, via Bismark. Carr and witness got out, went up in the woods and searched for the money, but did not find it. They then drove back to Flat river. Carr had promised witness and Hurry that he would take them out of town after the robbery and meet them at the gate of the picnic grounds. Hurry mysteriously disappeared, and was never seen nor heard from after August 5, 1920.

Lacy Coghill testified that on August 5, 1920, he was cashier of the Bank of Caledonia; that he knew Russell Carr and his wife and Charles Harris; that at about 11:45 a. m. Harris and another man came into the bank; that Harris drew a gun, and ordered "hands up," and told his partner to go around behind; that Harris, holding his gun on witness, also came around; that they put witness in the vault, tied his hands and feet, and blindfolded him. They were not masked. They were in the bank about 10 minutes. The door of the safe was open, and witness heard silver coins fall on the floor of the vault. They locked him in the vault, and left, taking with them about $2,866.25, most of which was in the safe. Coghill released himself, and, after taking the combination off' the door, got out of the vault. Harris was brought to the bank on the following Saturday by some officers. Coghill did not see Carr on the day of the robbery until about 1 p. m.

Several witnesses testified that they saw defendant on the street in front of the bank a few minutes before noon on August 5. He was talking with two men who were unloading gravel. One witness noticed him raise his hand over his head at that time. Two strangers were seen walking towards the bank, but no one saw signs of recognition pass between Carr and them. When the strangers entered the bank, Carr was talking with the men who had the load of gravel. He was facing the bank at the time. When the men entered the bank, Carr stood there a short time, and then said he believed he would go home, and get his car and go to Irondale. In a few minutes Carr and his wife drove out in a Ford car, and went north on the road. J. W. Tally, a traveling man, saw the defendant Carr and his wife and Charles Harris in an automobile on September 5 or 6, 1920. They were on the road north of and headed towards Bismark. This sufficiently outlines the evidence for the state.

Carr testified in his own behalf, denying in toto the testimony of Harris. He denied that Harris was ever in his automobile. He further testified that he and his wife left Caledonia about 11:10 a. m. on August 5, 1920, and drove to Bismark in his automobile, a distance of about 8 miles, arriving there before noon, and that he first heard of the robbery after their arrival at Bismark. They returned to Caledonia early in the afternoon of the same day.

1. Appellant insists that his demurrer to the evidence should have been sustained, because the only evidence that defendant had entered into a conspiracy with Harris and Hurry to rob the bank was the testimony of Charles Harris, "who was a convicted principal in said robbery, and who admitted having committed perjury on the trial of the case wherein he was convicted, and who at the time of that conviction had shortly before been, also convicted of the felony of manslaughter." His contention is that such evidence has no probative value.

The court gave the usual cautionary instruction as to the testimony of an accomplice in crime. As will be seen by reference to the statement, Harris was corroborated by disinterested witnesses in several important respects. The jurors were the sole judges of the weight of the evidence and of the credibility of the witnesses. The verdict is supported by substantial evidence.

2. Appellant complains of instruction I given for the state on the burden of proof, the presumption of innocence, and reasonable doubt. It defined reasonable doubt to be a doubt which has reason for its basis, and arising from a consideration of all the evidence in the case, and not a mere possibility of the defendant's innocence. The criticism is leveled against the words italicized.

An instruction defining reasonable doubt "as one for which a reason can be given" has been condemned in some jurisdictions as casting the burden on the defendant of furnishing reasons for not finding the defendant guilty, whereas it is on the state to make out a case excluding all reasonable doubt. See 16 C. J. 996. In State v. Cohen, 108 Iowa, 208, 213, 78 N. W. 857, 858 (75 Am St. Rep. 213), the court said:

"Nor can we approve the fifth instruction as a safe definition of reasonable doubt; * * * `A reasonable doubt is such a doubt as the jury are able to give a reason for.'"

That instruction differs materially from the one under consideration. An instruction defining a reasonable doubt as a doubt based on reason and which is reasonable in view of all the evidence was mildly frowned upon, but held nonprejudicial, in State v. Nerzinger, 220 Mo. 36, 49,...