State v. Curtis

• Decision Date: 11 December 1929
• Docket Number: 29814
• Citation: 23 S.W.2d 122,324 Mo. 58
• Parties: The State v. Arthur Curtis, Appellant
• Court: Missouri Supreme Court

23 S.W.2d 122

324 Mo. 58

The State v. Arthur Curtis, Appellant

No. 29814

Supreme Court of Missouri

December 11, 1929

Appeal from Livingston Circuit Court; Hon. Ira D. Beals Judge.

Affirmed.

Taylor & Taylor for appellant.

(1) The motion to quash the information should have been sustained. Secs. 3307, 3310, R. S. 1919; Laws 1927, p. 174; Sec. 28 Art. 4, Mo. Constitution; State v. Persinger, 76 Mo 346; McGrew v. Railroad, 230 Mo. 567; 36 Cyc. 1020; St. Louis v. Wortman, 213 Mo. 141; State v. Sloan, 258 Mo. 314. (2) The objection to the introduction of evidence should have been sustained. Authorities supra. (3) The court erred in sustaining objections to competent, material and relevant testimony offered by defendant. (a) Defendant offered evidence that his face was in bad condition the evening prior to the robbery and that he went to Owens's store to get medicine for it. And that it was still in bad condition shortly after the robbery. (b) The question of tan shoes, injected for the first time at the trial, is important on the question of identification. Defendant offered testimony to the effect that he had worn black shoes before the evening of the robbery, on that evening, on the day he was arrested and during all the time he was in jail. The court sustained the State's objections to this testimony and instructed the jury to disregard it. (c) The defendant, in answer to a question as to how far it was from the Owens store to the Owsley store, said: "Oh, I should judge possibly ten or twelve blocks; maybe farther. I don't know, because I haven't seen Owsley's store that I know of. There was two there, and I don't know one from the other." The court struck out the answer and directed the jury to disregard it. (4) In his cross-examination of Mrs. Giest the prosecuting attorney said, "And you are a kind of sweetheart of John Owens, aren't you?" Defendant objected, and he withdrew the remark, but immediately thereafter said: "And you kind of run around with the Curtises? A. No, sir. Q. And John Owens and that crowd?" The court on objection ordered the words "that outfit" stricken out. John Owens was not a witness and in no way connected with the trial. (5) The court during the testimony of Chief of Police Dorney made the following prejudicial remarks in the presence of the jury: "I don't either. There are some conflicting statements, but as far as the witness Owsley's testimony, he was positive in his identification." And again while Sheriff Dowell was testifying, "It would seem to me, of course, as to what he had on when he was taken to the jail would be competent, but after he was there he might have had them changed, and no doubt he did have a change of clothing." (6) The alibi of defendant was proven by five unimpeached witnesses, in addition to the defendant. (7) The affidavits attached to the motion for new trial show that competent, material and relevant testimony can be introduced on behalf of defendant at another trial, and would in all probability result in a verdict for defendant. (8) Defendant's instructions numbered 3, 4 and 5 should have been given.

Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.

(1) The information is sufficient both as to form and substance. It correctly charges robbery in the first degree, by means of a dangerous and deadly weapon. Sec. 3307, R. S. 1919; Sec. 3310, R. S. 1919, as repealed by Laws 1927, p. 174; State v. Reich, 239 S.W. 836; State v. Kilcullen, 301 Mo. 285; State v. Affronti, 238 S.W. 109; State v. Taylor, 18 S.W.2d 477. (a) The allegation "with a dangerous and deadly weapon" was not improper; it is not an element of the offense of robbery in the first degree, but Sec. 3310, Laws 1927, p. 174, authorizes its inclusion in the information. State v. Kilcullen, supra; State v. Collins, 266 Mo. 98. (b) Sec. 3310, Laws 1927, p. 174, is not violative of Sec. 28, Art. 4, Mo. Constitution. The subject thereof is expressed in the title. It does not contain more than one subject. State v. Miller, 45 Mo. 495; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Vandiver, 222 Mo. 206; Elting v. Hickman, 172 Mo. 237; Lynch v. Murphy, 119 Mo. 163; State v. Hurley, 258 Mo. 275; State ex rel. v. Roach, 258 Mo. 541; State ex rel. v. Drabelle, 258 Mo. 568; St. Louis v. Wortman, 213 Mo. 131; State v. McEniry, 269 Mo. 228; State ex rel. v. County Court, 128 Mo. 427; State ex rel. v. St. Louis, 241 Mo. 231; Witzmann v. Railroad, 131 Mo. 612; Burge v. Railroad, 244 Mo. 76. (c) The section does not attempt to broaden or add to the elements in the crime of robbery in the first degree as defined in Sec. 3307, R. S. 1919. (2) Requested instructions covered by given instructions need not be given. The court's instructions numbered 3 and 4 correctly declare the law. State v. Williams, 309 Mo. 155; State v. Baldwin, 281 S.W. 940. (3) The allegation of the motion for new trial on the proposition on newly-discovered evidence is not sufficient to warrant a review of the point in this court. It states only conclusions and fails to show the exercise of reasonable diligence on the part of the defendant. The affidavit supporting the allegation contained only cumulative matters and there is nothing therein which would lead one to believe that a different result would be obtained if the case was sent back for new trial. State v. Smith, 247 S.W. 157; State v. Walker, 50 Mo. 322; State v. Eason, 18 S.W.2d 77. (4) Appellant is in no position to complain that the court erred in sustaining the State's objections to testimony which he sought to elicit from certain witnesses. Where the trial court refuses to permit defense witnesses to testify to certain propositions objected to by the State, the defendant must, of necessity, make his offer of proof before this court will review the alleged error. State v. Deviney, 278 S.W. 726; State v. Wagner, 279 S.W. 23; State v. Farrar, 285 S.W. 1000. (5) Appellant is in no position to complain of the prosecuting attorney's examination of witness Mrs. Giest. The remarks objected to were withdrawn, and those not withdrawn were stricken out by the court. (6) Defendant is in no position to complain that he was surprised by the testimony of State's witnesses Owsley, Mann and Dorney in that they testified at the trial that defendant wore freshly shined tan shoes on the night of the robbery. No request for a continuance was requested. This is essential to a review of the point. Failure of request is waived. State v. Whitsett, 232 Mo. 526; State v. Glon, 253 S.W. 365.

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

OPINION

DAVIS

In an information filed by the prosecuting attorney in the Circuit Court of Livingston County, defendant was charged with robbery in the first degree with a dangerous and deadly weapon, to-wit, a pistol. The jury returned a verdict finding defendant guilty of robbery in the first degree as charged in the information, and assessed his punishment at fifteen years in the State penitentiary. An appeal was taken from the judgment entered on the verdict.

The evidence developed on the part of the State warrants the finding that one I. B. Owsley operated a grocery store in the city of Chillicothe, Livingston County. The store was sixty feet deep. On the night of November 15, 1927, about eight P. M., Owsley and one Charles Mann, a farmer, were present in the grocery store, sitting near the stove about the middle of the store, chatting and conversing. At this juncture two men came into the store and said, "Stick them up! Stick them up!" Owsley said that one of the men was defendant and he had a pistol. The men forced Owsley and Mann to lay flat on the floor, faces downward. They took from the cash register the sum of $ 32.97 belonging to Owsley. They also searched Owsley and Mann. The robber was dressed on that occasion in blue overalls, a jumper or lumber jacket with a grayish cast, a light cap and freshly-shined light tan shoes. Defendant, when Owsley saw him in the police station the next day, was dressed in the same habiliments. On being asked the question, "And you are positive that he is the man?" meaning defendant, Owsley iterated, "Absolutely." Owsley said that he had a white handkerchief tied over his face, which covered it from below the nose down, that is, his mouth and chin. He stated that he could see his face sufficiently to identify him.

Charles Mann testified for the State. He said that defendant was the man who held the pistol and who covered them with it. Defendant had a white handkerchief under his nose and over his mouth, that hid the lower part of his face, and was dressed in blue overalls and a plaid lumber jacket of grayish hue. He wore light tan shoes freshly shined, and carried a bright new gun. When he saw defendant the next day in the police station, he identified him by the part of his face he could see, by his clothes and especially by his walk, for, when defendant left the store the night of the robbery, he saw him walk up the aisle to the front door. Mann said that his walk was the last thing that clinched the identification of defendant as the robber in his mind, as the clothes tallied and the features tallied, and then when he saw the gait he was thoroughly satisfied. He further said that the robber was a stoop-shouldered man, and that helped to identify defendant. Both Owsley and Mann positively identified defendant as one of the robbers that held them up that night.

The chief of police, for the State, testified that he saw defendant on the afternoon of November 15, 1927, and defendant was garbed in a lumber jacket, overalls and a light cap. During the day of November 16th, while defendant was in the police station, he was asked how he was dressed the evening previous, and he said, "Just the...