State v. Craft

• Citation: 92 S.W.2d 626,338 Mo. 831
• Decision Date: 21 March 1936
• Docket Number: 34531
• Parties: The State v. Tom Craft, Appellant
• Court: United States State Supreme Court of Missouri

92 S.W.2d 626

338 Mo. 831

The State v. Tom Craft, Appellant

No. 34531

Supreme Court of Missouri

March 21, 1936

Appeal from Stoddard Circuit Court; Hon. James V. Billings Judge.

Reversed and remanded.

L E. Tedrick and John A. McAnally for appellant.

(1) The court erred in refusing to give defendant's request for a directed verdict of not guilty at the close of the whole case. State v. Doubert, 42 Mo. 242; State v Young, 237 Mo. 170, 140 S.W. 873; State v. Wilton, 225 S.W. 965. (2) The court erred in permitting the witnesses, Irl Jones, Thomas F. Donaldson and Fred Rigdon, to testify in rebuttal for the State as to the good reputation of the witness, Dee McMunn, for honesty, uprightness and good citizenship. McMunn's reputation was not in issue. State v. Thomas, 78 Mo. 327; State v. Patrick, 107 Mo. 147; State v. Fogg, 206 Mo. 716, 105 S.W. 624; Orris v. Ry. Co., 279 Mo. 21, 214 S.W. 130; State v. Ritter, 288 Mo. 390, 231 S.W. 609. (3) The court erred in permitting the State to offer in rebuttal and read in evidence from the transcript of the evidence of defendant given at a habeas corpus hearing of defendant for bail; and in refusing to strike and to instruct the jury to disregard the matters and things read to them from said transcript; there was nothing in this transcript to contradict defendant on any material point, and concerned a subject about which defendant was not asked on direct examination. State v. Wicker, 222 S.W. 1014; State v. Grant, 144 Mo. 56, 45 S.W. 1102. (4) The court erred in permitting the State to offer and read in evidence to the jury the State's Exhibits 3, 4 and 5, the same being the alleged statements or confessions of Rollie Nicholson, Jap Brooks and Elmer Craft. These alleged confessions did not contradict on any material point the evidence given by these witnesses. And also, these alleged confessions were those of co-conspirators, according to the State's theory, and were made after the commission of the robbery, and were incompetent. State v. Ross, 29 Mo. 32; State v. Duncan, 64 Mo. 262; State v. Barham, 82 Mo. 67; State v. Fredericks, 85 Mo. 145; State v. Reed, 85 Mo. 194; State v. McGraw, 87 Mo. 161; State v. Beaucleigh, 92 Mo. 490, 4 S.W. 666; State v. Priesmeyer, 327 Mo. 335, 37 S.W.2d 425. (5) The court erred in modifying defendant's Instruction 8D, by adding at the end thereof "provided you find that he had not conspired with said persons to commit robbery generally." Subdiv. 4, Secs. 3681, 3734, R. S. 1929; State v. Bird, 286 Mo. 593, 228 S.W. 751. (6) The court erred in modifying defendant's Instruction 12D by striking therefrom after the word "that" in the first line thereof the following: "Even though you should find and believe from the evidence that the defendant, Tom J. Craft, after the alleged robbery mentioned in the evidence was committed, talked with some of the parties or persons connected with said robbery, and even though you should find that the defendant, Tom J. Craft, received some money taken in said robbery or took the witness, Jap Brooks, from Poplar Bluff to Sikeston to aid the said Jap Brooks to escape or did other things to aid Rollie Nicholson, Elmer Craft, Jap Brooks and Delmer C. Doherty to conceal said robbery, yet." Authorities under (5), supra.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) The court did not err in overruling appellant's demurrer to the evidence at the close of the State's case. State v. Barr, 78 S.W.2d 104; State v. Vigus, 66 S.W.2d 854. (2) The court did not err in its ruling as to the cross-examination of the appellant. State v. Ancell, 62 S.W.2d 443; State v. Gilmore, 81 S.W.2d 433; State v. Hawley, 51 S.W.2d 77; State v. Martin, 56 S.W.2d 139; State v. Meeks, 39 S.W.2d 765; State v. McBride, 231 S.W. 594. (3) The court did not err in permitting the State to introduce evidence of the good reputation of the witness Dee McMunn. State v. Corrigan, 262 Mo. 211. (4) The court did not err in permitting the State to introduce Exhibit 2. State v. McGuire, 39 S.W.2d 527. (5) The court did not err in admitting in evidence State's Exhibits 3, 4 and 5. State v. Brockington, 36 S.W.2d 911; State v. Carola, 292 S.W. 721; State v. Gatlin, 170 Mo. 354; State v. Shepard, 67 S.W.2d 91. (6) The court did not err in overruling appellant's demurrer at the close of the entire case. (7) The court did not err in modifying appellant's Instruction 8-D. State v. Hayes, 262 S.W. 1034. (8) The court did not err in modifying appellant's Instruction 12-D. (9) The court did not err in modifying appellant's Instruction 13-D. State v. Kowertz, 25 S.W.2d 113.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

By information filed in the Circuit Court of Dunklin County defendant was charged with robbery in the first degree alleged to have been committed by means of a dangerous and deadly weapon, a pistol. The cause was sent on change of venue to the Circuit Court of Stoddard County, where it was tried, resulting in defendant's conviction and sentence to ten years' imprisonment in the penitentiary. He appeals.

The robbery occurred on October 28, 1933, on a highway between Kennett and Senath, in Dunklin County. There was then no bank at Senath and Jones Brothers, a partnership, operated at that place a business called Jones Brothers' Exchange, where checks were cashed and money advanced for cotton picking, etc. This exchange was managed by one Dee McMunn, who each morning would take from a bank at Kennett to Senath a sufficient sum for the expected needs of the day. There was another similar exchange at Senath operated by a Mr. Caneer, the money for which was brought from Poragould, Arkansas, and which exchange is generally referred to in the evidence as the Paragould Exchange.

About seven-thirty on the morning of October 28, 1933, McMunn started from Kennett to Senath, alone and unarmed, in an automobile, having in his possession about $ 4200, belonging to Jones Brothers. On the way, according to his testimony, he was stopped and robbed of the money, at the point of a pistol, by two men whom he met, driving a Chrysler automobile, and who, after passing him, turned and followed him a short distance and then forced him to the side of the road and compelled him to stop. Those two men were subsequently arrested and were identified as Elmer Craft, a cousin of defendant, and Jap Brooks. Both were eventually tried and convicted.

Defendant was not present at the actual robbery. He was prosecuted as a principal, but on the theory that he and the two who actually committed the robbery and two others, Delmar Doherty and Rollie Nicholson, had conspired to commit it and had planned it and arranged to have it done and that it was done pursuant to the conspiracy.

It was shown that Doherty conceived and instigated the robbery. He was arrested shortly after its commission and eventually confessed his guilt. At the time of this trial he had pleaded guilty and received a penitentiary sentence and he was used by the State as a witness against defendant. His testimony tends to implicate defendant as one of the conspirators. Aside from his testimony most of the evidence implicating defendant was that of officers and others who testified to statements and admissions of defendant made after his arrest, which occurred about a week after the robbery. There were, however, other corroborating facts and circumstances shown. It appears that Doherty first approached defendant with the proposition that defendant commit the robbery, but defendant declined, explaining that he had been in trouble before, and did not want any more such experience. Doherty asked him if he could suggest someone who would do it. Defendant suggested Nicholson. Nicholson was seen and conferred with. After thinking it over for a time Nicholson refused to commit the robbery. Defendant then suggested Elmer Craft, whom Doherty did not then know, and went with Doherty to a place called Neely's Landing, where Elmer lived, to see Elmer. Elmer was not at home and word was left with his wife for him to call Doherty. There is testimony from which a jury could find that defendant gave that message and Doherty's telephone number to Elmer's wife. Shortly thereafter Elmer Craft called Doherty and they had a conference. About the next day there was a meeting of all five of the alleged conspirators at the home of one Blackwell. At this meeting the proposed robbery was discussed and plans were laid. Elmer Craft and, it seems, Brooks, were willing to "pull off" the robbery, but had no automobile and would need one. Defendant, who was a beer distributor and had some cars or trucks, was asked to allow the use of one of his cars, but refused. There is some evidence that he gave as a reason that his cars were too well known. He says it was because he wanted nothing to do with the enterprise.

There was some talk of having Elmer Craft go to St. Louis and steal a car for use in the robbery, but finally it was suggested that with $ 100 to use as a "down payment" a used car that would answer the purpose might be procured and Doherty agreed to obtain and furnish the money, which he later did. It appears that Nicholson was delegated to procure the car. Defendant went with him on this mission. They went to two or three places where used cars were kept for sale and, among others, looked at the Chrysler car which, as was shown at the trial, was used by Elmer Craft and Brooks in the robbery. It should be stated, however, that they did not buy the Chrysler when they first looked at it, not deeming it suitable for the purpose. They wanted a fast car and the Chrysler did not look to be in sufficiently good condition and they went elsewhere to look at a Ford V8. Defendant does...