State v. Evans

• Decision Date: 11 December 1929
• Docket Number: 29858
• Citation: 23 S.W.2d 152,324 Mo. 159
• Parties: The State v. Robert Evans and John Blankenbaker, Appellants
• Court: Missouri Supreme Court

23 S.W.2d 152

324 Mo. 159

The State v. Robert Evans and John Blankenbaker, Appellants

No. 29858

Supreme Court of Missouri

December 11, 1929

Appeal from Johnson Circuit Court; Hon. Leslie A. Bruce Judge.

Affirmed.

R M. Robertson and Louis J. Rasse for appellants.

(1) The court erred in not giving instructions marked "A" and "B," or one of a similar nature, for the reason that the examinations of Gibson, both in chief and cross-examination, reasonably show that the jury could find that he was one of the principals in the participation of the alleged crime. State v. Clark, 288 S.W. 77; State v. Chiagk, 92 Mo. 395. (2) The court erred in permitting prejudicial testimony in a number of instances which served to prejudice the minds of the jury and was introduced for that purpose by the State's attorney, such as the testimony of Webb, Prater and Gibson, to the effect that these men were seen at a sale and in Bates City some five or six hours before the alleged crime was committed. State v. Huff, 161 Mo. 459; State v Nelson, 166 Mo. 191; State v. Thomas, 99 Mo. 235. (3) The court erred in admitting any evidence and should have sustained a peremptory instruction, as there was no evidence of force and violence. State v. Craft, 253 S.W. 227. (4) The court erred in not enlarging the cautionary instruction as to oral statements made or verbal admissions given, for the reason that it was only given on behalf of Evans and should have covered Blankenbaker; also regarding statements made not in the presence of each other. 1 Greenleaf Ev. (14 Ed.) sec. 200; State v. Hendricks, 172 Mo. 669. (5) The court erred in not properly reprimanding the prosecuting attorney and discharging the jury when in his arguments he referred to these defendants as robbers, criminals, and said they ought to be sent to the penitentiary where many of their like were, and by referring to the fact, directly and by strong insinuations, that these defendants did not take the witness stand. State v. Hess, 240 Mo. 147; State v. Young, 99 Mo. 666; State v. King, 74 S.W. 627.

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

(1) The trial court committed no error in refusing to give defendant's requested instructions lettered "A" and "B." The court was under no duty to formulate and give a correct instruction on the theory or principle embodied in the requested and offered instructions A and B. The record contains no evidence tending to show that State's witness Gibson was an accomplice in the crime. He was not jointly charged with defendants. The evidence shows that he did not assist in planning the crime and that he actually advised defendants "to stay away from old man Windsor's as there was going to be hell raised." The fact that this State's witness Gibson had been complained against in the justice of peace court by the prosecuting witness constitutes no evidence, nor can one draw a logical inference from that fact, that he was an accomplice in the crime. The record does not disclose that the prosecuting attorney filed an information either jointly or singly against Gibson. Trial courts are not required to give instructions upon collateral issues, whether requested or offered, where there is no evidence on which to base the particular instruction. State v. Green, 229 Mo. 655; State v. Zorn, 202 Mo. 42; State v. Edwards, 203 Mo. 539. No accomplice of the defendants testified as a witness for the State; hence the court was not required to give a cautionary instruction. State v. Buckley, 298 S.W. 782. (2) Trial courts are not required to give instructions upon collateral issues in a criminal case, upon vague and indefinite oral requests of the defendants. The defendants should have formulated and offered an instruction to the court which embodied the principle for which they were contending. State v. Starr, 244 Mo. 183; State v. Simon, 295 S.W. 1080. The statements and admissions attributed to the defendants by State's witness do not constitute a part of the law of the case, but are collateral issues. Sec. 4025, R. S. 1919; State v. Burrell, 298 Mo. 678; State v. Sandoe, 289 S.W. 894. Instructions on the nature or effect of evidence are always matters purely collateral. All rules of evidence upon which it would be proper to instruct are collateral matters and there is no duty upon the court to instruct on such matters unless properly requested by the defendant. State v. Murray, 292 S.W. 434; State v. London, 295 S.W. 549. (3) Defendants are not entitled to complain in this court of the admission in evidence of Webb's testimony. No objection was interposed by defendants' counsel. State v. Townsend, 289 S.W. 570. The same is true of the testimony of Prater. The same is true of witness Gibson's testimony relative to having seen the defendants at a sale five or six hours prior to the commission of the robbery. No objection was made. State v. Murray, 292 S.W. 434. (4) There is no merit in the contention that there was no evidence of force and violence. The prosecuting witness testified that one of the robbers threw his arms around him and held him while the other rifled his trousers' pocket which were on the foot of the bed. In view of the old age of the victim, it is extremely difficult to imagine more force or violence than was used in the consummation of this robbery. State v. Spivey, 204 S.W. 259.

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

OPINION

HENWOOD

By an information filed in the Circuit Court of Johnson County, the defendants were jointly charged with robbery in the first degree. They were tried together and found guilty. The jury fixed the punishment of Evans at imprisonment in the penitentiary for five years and the punishment of Blankenbaker at imprisonment in the penitentiary for ten years, and they were sentenced accordingly. Their separate appeals, taken from the separate judgments entered, were briefed and argued together and will be disposed of in one opinion.

The prosecuting witness, W. T. Windsor, testified, in substance, as follows:

He was eighty-six years of age and lived alone in Jackson Township, in Johnson County. On January 30, 1928, he went to bed at "sundown." Later that evening, between eight and nine o'clock, two men came to his house, knocked at the door, and asked for a hammer or pair of pliers to use in fixing their car. He told them he thought there was a hammer in the room, near the door. One of the men came into the room and looked around, but said he could not find the hammer. There were no lights in the room. He (Windsor) picked up his search light, which he kept near his bed, and, while "stooping over," looking for the hammer, this man threw his arms around him (Windsor), at his back, and said: "All right, Bill." Then, the other man came into the room and said: "Now, where is your money?" He (Windsor) said: "I haven't any money." The same man said: "Yes, you have." He (Windsor) said: "All the money I have is in my pants' pocket on the foot of the bed." As that man left the room, the man who was holding him (Windsor) said: "Did you get it?" Then, this man said to him (Windsor): "How much money did you have?" He (Windsor) said: "I think about seventy-five dollars." This man started to push him out of the room, through the doorway, and he said: "Don't push me out there." This man said: "I don't want anyone shooting at me." He said: "I have nothing to shoot with." This man said: "Start the car, Bill." This man held him until the car started, then ran to the car, in which both men left immediately. They took "seventy-five or seventy-six dollars" from his pants' pocket. The man who held him "didn't attempt any violence; nothing rough at all." He did not know "exactly" who the robbers were. Early the next morning, he told three of his neighbors about the robbery. The defendant Blankenbaker had lived "about a quarter" from his house for several years and had been there several times. A few days before the robbery, Blankenbaker and Gene Gibson hauled two loads of wood for him, and, when he gave Blankenbaker a "one dollar bill" for hauling the wood, Blankenbaker saw his roll of money.

Buford Gibson testified: He was charged with this robbery and arrested, but the charge against him was dismissed. He lived "about a quarter" north of Windsor's place and about three miles southwest of Chapel Hill, with his grandmother and his uncles, Gene and Sam Gibson, and his cousin, Roy Gibson. He served two years in the soldiers' prison at Leavenworth for desertion from the United States Army. He and the defendant Blankenbaker were "in Leavenworth together." Blankenbaker lived at his house both before and after they were at Leavenworth. On January 30, 1928, between six and seven o'clock in the evening he and Blankenbaker drove to Chapel Hill in a Ford roadster. On the way to Chapel Hill, Alan Longacre came out of his house and stopped them and asked them to bring him some tobacco. They left Chapel Hill, on their return trip, about eight o'clock. Soon after they left Chapel Hill, Blankenbaker said "he was to meet Evans" (the other defendant) along the road. Evans lived near Bates City, about six or seven miles north of Chapel Hill. About three-quarters of a mile from Chapel Hill, they found Evans standing by the side of his car, a Ford coupe. He heard Blankenbaker and Evans plan the robbery. Evans said to Blankenbaker: "Well, take everything off of you; shake yourself down -- take everything out of your pockets." He (Gibson) said: "Where are you going?" Evans said: "To Mr. Windsor's to pull a job." He (Gibson) said: "You had better stay away from there; there is going to be hell raised." Blankenbaker got into the Ford coupe with Evans and told him (Gibson) he would see him on the road. Evans and...