State v. Davis

• Decision Date: 31 January 1905
• Citation: 85 S.W. 354,186 Mo. 533
• Parties: STATE v. DAVIS.
• Court: Missouri Supreme Court

85 S.W. 354

186 Mo. 533

STATE v. DAVIS.

Supreme Court of Missouri, Division No. 2.

January 31, 1905.

ROBBERY—INSTRUCTIONS—EVIDENCE—WITNESSES —CAPACITY—OBLIGATION OF OATH —OBJECTIONS—TIME TO MAKE.

1. The time to ask a witness whether the ordinary oath will be binding on his conscience is previous to the administration of the oath.

2. Where all the evidence tended to show robbery by force and violence, an instruction authorizing a conviction if the jury found that the property of the prosecuting witness was taken "by force and violence to his person, by putting him in fear of an immediate injury to his person," etc., was not erroneous for omitting the word "or" after the phrase "by force and violence to his person"; the instruction, without the phrase as to putting in fear, being sufficient.

3. It is not error to instruct that, if there is any evidence which raises a reasonable doubt as to the presence of defendant at the time and place where the crime is alleged to have been committed, he should be acquitted.

4. Evidence on a trial for robbery examined, and held to support a verdict of guilty.

Appeal from Criminal Court, Jackson County; Jno. W. Wofford, Judge.

Calvin L. Davis was convicted of robbery, and he appeals. Affirmed.

L. A. Laughlin, for appellant. E. C. Crow, Atty. Gen., and Sam B. Jeffries, for the State.

GANTT, J.

The prosecuting attorney of Jackson county on the 7th of September, 1903, in term time, upon the affidavit of Gaw Lung Toy, filed his information in the criminal court of Jackson county, charging that the defendants Calvin L. Davis and Harry Lutes, on April 6, 1903, at the county of Jackson, in the state of Missouri, in and upon one Gaw Lung Toy unlawfully and feloniously did make an assault, and $140, lawful money of the United States, of the value of $140, the money and property of the said Gaw Lung Toy, then and there, by force and violence to the person of said Gaw Lung Toy, and by putting the said Gaw Lung Toy in fear of immediate injury to his person, feloniously did rob, steal, take, and carry away, against the peace and dignity of the state. The affidavit filed with the information, and upon which it is based, was full and positive, clearly stating the offense charged in the information. The defendants were arrested and duly arraigned January 12, 1904, and the cause set down for March 14, 1904, on which last-named day the defendant Calvin L. Davis was put upon his trial. The evidence fully established that on the night of April 6, 1903, Gaw Lung Toy, an aged Chinaman, was the proprietor of a store in the basement of No. 115 West Sixth street, in Kansas City, Mo.; that Charley Kee, another Chinaman, was the clerk of old man Toy in said store; that about 11 o'clock that night two men—one a tall man, and the other not so tall, but chunky—came into the store; and that Toy and Kee were at the time engaged in unboxing some goods. Soon after entering the store the two men assaulted Charley Kee, knocking him down and severely wounding him, and then, turning their attention to old man Toy, who was endeavoring to escape, they assaulted him, cut his throat in several places, inflicted several wounds on his scalp, rendering him unconscious, and robbed him of $140, which he had in a small bag or pouch tied to a string around his body. Both Kee and Toy positively identified defendant and his associate, Lutes, as the men who assaulted and robbed the old man. On two occasions they had visited Toy's store and made a minute examination of his premises, on the pretense that they were detectives, and they were not masked, so that the Chinamen had ample opportunity to see and recognize them. Soon after the robbery, and while Toy was still bleeding profusely and unconscious, and Kee not able to give the alarm, a negro happened in, and, discovering the crime had been committed, at once gave the alarm, and summoned a physician, who testified to the stabs and bruises on old man Toy and Kee. A description was furnished the police officers, and a week or so later Kee recognized defendant as the tall man of the two robbers, and saw him going into an opium joint on Sixth street, and at once notified the officers. The officer recognized defendant at once from the description furnished him, and arrested him in the opium joint, with a pipe in his hand. Asked by the officer who his companion was when he went to Toy's store on the night of the robbery, he said it was "Lefty," and it was in this way that Lutes was identified as one of the robbers, or the chunky man. Defendant admitted he was in Toy's store that night, but denied the robbery. His defense was an alibi; that on the night of April 6th he was mustered into the Third Regiment of National Guards, and drew his uniform that night. His evidence was corroborated by two of the officers of the regiment, who saw him until about midnight at the armory. He had worked at the stockyards, and offered the evidence of one witness to...