State v. Couch
| Decision Date | 17 December 1937 |
| Docket Number | No. 35089.,35089. |
| Citation | 111 S.W.2d 147 |
| Court | Missouri Supreme Court |
| Parties | THE STATE v. GEORGE COUCH, <I>alias,</I> GEORGE FITZWATER, Appellant. |
Appeal from Circuit Court of City of St. Louis. — Hon. J.W. McAfee, Judge.
AFFIRMED.
Louis E. Miller and Wm. C. McLaughlin for appellant.
Roy McKittrick, Attorney General, and W.W. Barnes, Assistant Attorney General, for respondent.
(1) These assignments go to the weight of the evidence, and are of no avail in this court. State v. Barnes, 29 S.W. (2d) 159; State v. Evans, 68 S.W. (2d) 708. (2) The nature and extent of the cross-examination of a witness is largely within the discretion of the trial judge. State v. Wagner, 311 Mo. 411; State v. Loahmann, 58 S.W. (2d) 311. (3) All statements admitted in evidence, made by the defendant, were voluntary, and therefore competent. State v. Sinovich, 46 S.W. (2d) 881; State v. Wilins, 221 Mo. 450. (4) The record fails to show any bias or prejudice of the jury toward appellant. State v. Reed, 44 S.W. (2d) 33; State v. Steelman, 318 Mo. 632.
Appellant was convicted of murder in the first degree and sentenced to life imprisonment. He appealed.
The evidence disclosed the following facts: On the night of April 29, 1934, shortly after eleven o'clock, a man dressed in a dark blue suit and wearing a light gray hat attempted to rob a street car near Fourth Street and Franklin Avenue in the city of St. Louis, Missouri. The attempt to rob created a commotion, and the culprit became frightened, kicked the glass out of the car door and escaped. The attempted robbery was reported to an officer named Siko, who immediately began an investigation. Shortly thereafter a number of pistol shots were heard and officer Siko was found shot and mortally wounded. He was taken to a hospital where he gave a description of his assailant which corresponded to that of the man who had attempted to rob the street car. During the night a man named DeMore, who was wearing a dark suit and a light gray hat, and who generally answered to the description of the man wanted, was arrested as a suspect. The motorman of the street car identified DeMore as the person who had attempted to perpetrate the robbery, and officer Siko identified him as his assailant. Sometime thereafter Siko died. DeMore at first strenuously denied the charge, but after a number of days, during which he was frequently questioned, he entered a plea of guilty and was sentenced to life imprisonment. After DeMore had commenced his sentence appellant was arrested. During the investigation that followed, a light gray hat and a number of empty shells were found upon a roof of a building near the place where Siko had been shot. A number of the shells were such as would fit Siko's gun. Siko's revolver had been taken by his assailant. The murderer had been seen standing over Siko shooting him. Siko's assailant also fired a number of shots at the man who saw this shooting. Appellant had been living with his sister at 3513 Cass Avenue. In the room occupied by appellant the police found a grip containing the revolver of officer Siko and also another revolver. Appellant was then charged with the murder of Siko. DeMore was later pardoned by Governor Park.
[1] Appellant has filed no brief in this court. His motion for new trial contains forty-nine assignments of error. Many of these pertain to the same point of law. Some are general in their nature and preserve nothing for our review. Others are not supported by the record, that is, in a number of assignments appellant complained of the admission of testimony, but during the trial made no objection to such testimony. We will dispose of the points preserved for our review. [2] Appellant asserted that the evidence was insufficient to sustain the verdict. The State introduced evidence that appellant had, through his brother Russell, borrowed a 38 revolver from one Kemper the day before Siko was shot. This revolver was obtained from Kemper by the police department. An expert on identification of firearms testified that he made a test of one of the 38 special shells found on the roof, and this shell revealed it had been fired from Siko's revolver. Another test of one of the 38-caliber short shells disclosed that it had been fired from Kemper's revolver. Appellant's brother, Russell, testified that he borrowed Kemper's revolver and delivered it to appellant on Sunday, April 29, 1934; that appellant returned it the following day and he, Russell, in turn delivered it to Kemper. It was also shown that appellant had a dark blue suit, and that the gray hat found on the roof fit appellant much better than it did DeMore. A witness named Schumaker, who lived in south St. Louis, testified that he had known appellant for many years; that on the morning of April 30, 1934, at about three o'clock, appellant came to his home and asked to be admitted; that he prepared a cup of coffee for appellant. This witness further testified in substance as follows:
The story told by witness Schumaker coincides with other facts proven. For example, a witness testified that he saw the shooting and as he approached the scene the officer's assailant shot at him and he retreated. Other evidence also shows that the man who attempted to hold up the street car kicked the glass out of the door and escaped. As to identification, a witness testified that at a distance of seventy-five feet he could not distinguish appellant from DeMore. The motorman also testified that DeMore and appellant looked very much alike. Appellant's brother, Russell, testified that appellant told him substantially the same story as that related by witness Schumaker with reference to the attempted robbery and the shooting of officer Siko. Both of these witnesses testified that appellant showed them a large blue pistol which he claimed he had taken from a police officer.
Appellant's defense was an alibi. The evidence to sustain this defenses seems to us very unsatisfactory. Appellant, in his motion for new trial, contended that the evidence conclusively showed that he was at the 3513 Cass Avenue address at eleven o'clock; that he, therefore, could not have been at Fourth and Franklin at the time of the attempted holdup. The attempted robbery occurred at about eleven-fifteen P.M. Conceding that appellant was at 3513 Cass Avenue at eleven P.M., there is nothing in the record to show that he could not have been at Fourth and Franklin at eleven-fifteen P.M. The evidence related, if true, is sufficient to sustain the verdict. Other incriminating facts were shown, but it is unnecessary to encumber the record with further details.
[3] Appellant assigned error to the ruling of the trial court in permitting witness Lewis to express his opinion that a test disclosed that a shell found upon the roof had been fired from the officer's gun, and another shell from Kemper's revolver. Appellant asserted that the witness's own evidence disclosed he was not a ballistic expert. The witness did testify that he was not a ballistic expert, but that he had had much experience in the work of identifying firearms; that the term "ballistic expert" did not apply to his line of work. In this the witness may be technically correct. But, be that as it may, the witness's testimony disclosed that he was an expert in the identification of firearms and bullets by the comparison method by means of a microscope. The method used in this case to identify the shells and revolvers was similar to the method employed in the case of State v. Shawley, 334 Mo. 352, 67 S.W. (2d) 74, l.c. 80. The question was there fully considered and it was held that the witness was qualified to testify. The rule is now well settled that such evidence is competent and may be considered by the jury in arriving at a verdict. ...
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State v. Bradley
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... ... Such reliance is unwarranted for the reason that defendant was not a party to the separate trial against Ricky and was in no way affected by the judgment and sentence therein. State v. Couch, 341 Mo. 1239, 111 S.W.2d 147, 150(9-11) (1937); State v. Bradley, 361 Mo. 267, 234 S.W.2d 556, 558(2-4) (Mo.1950). See also State v. Aubuchon, 381 S.W.2d 807, 815(14-17) (Mo.1964). 2 A judgment in a criminal case operates ... as res judicata in a second criminal case only where the parties to ... ...
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