State v. Farmer, 35340.

• Citation: 111 S.W.2d 76
• Decision Date: 17 December 1937
• Docket Number: No. 35340.,35340.
• Parties: STATE v. FARMER.
• Court: United States State Supreme Court of Missouri

111 S.W.2d 76

STATE v. FARMER.

No. 35340.

Supreme Court of Missouri, Division No. 2.

December 17, 1937.

Appeal from Circuit Court, Cooper County; Nike G. Sevier, Judge.

George Farmer, alias Robert J. Byrne, was convicted of robbery in the first degree by means of a deadly weapon, and he appeals.

Reversed and remanded.

Harris, Price & Alexander, of Columbia, Roy D. Williams, of Booneville, and Ira B. McLaughlin, of Kansas City, for appellant.

Roy McKittrick, Atty. Gen., and Aubrey R. Hammett, Jr., Asst. Atty. Gen., for respondent.

COOLEY, Commissioner.

Appellant herein, defendant below, was charged by information, with robbery in the first degree by means of a dangerous and deadly weapon, under section 4061, R. S.1929 (Mo.St.Ann. § 4061, p. 2863). The information was filed in the circuit court of Boone county, September 20, 1935, alleging the commission of the offense on November 13, 1931. Defendant was arrested in New York and brought to Missouri about July, 1935. The venue was changed to the circuit court of Cooper county, where an amended information was filed, and where, after one jury had failed to agree, defendant, on a second trial, was convicted, sentenced to ten years in the penitentiary, and duly appealed. The appeal presents mainly questions concerning the sufficiency of the amended information and the propriety of certain instructions.

The State's evidence tended to show the following:

Between 9 and 9:30 a. m. on said November 13, 1931, two men entered the State Bank of Hallsville, in Hallsville, Boone county. Velton G. Caldwell, the State's principal witness, was assistant cashier, and at the time was alone in the bank and in charge thereof, and had custody of its funds. According to his testimony, one of the men, defendant, pointed a pistol at him and ordered him to "stick 'em up," which he did. He was then compelled to sit down on the floor, and defendant kept him covered with the pistol while the other man, one Griffith, rifled the till and the vault, securing about $900. The two men then left. It seems to be inferred, rather than proved, that they left the bank building in an automobile which had been standing in front of the building, with a third man behind the wheel, during the robbery. There was no actual proof of this, and the third man, if there was one, was not identified. Caldwell apparently did not see him, as his first intimation of trouble was when the two men entered the bank where he was at work and he was ordered to put up his hands. When the robbery was accomplished he was compelled to go into the vault, though not locked in, and when he emerged the robbers were gone. He does not appear to have seen them again at that time nor does he state that he saw a third man or an automobile. The presence of such "third man" or of an automobile is not shown by the testimony of other witnesses. There is some implied reference to a "third man" in certain questions propounded to Caldwell. The fact, if a fact, seems to have been assumed rather than proved, and, if a fact, the identity of such "third man" is left wholly in the dark. The fact that there was a robbery, and that it was accomplished by means of a dangerous and deadly weapon, is clearly established and not seriously controverted, so details thereof may be omitted. At the trial Caldwell positively identified defendant as the man who had held the pistol upon him. He had never seen defendant before the robbery nor for nearly four years thereafter, but that fact, and other circumstances brought out in cross-examination, go only to the weight and credibility of his testimony. His testimony made a submissible case for the jury.

The defense was an alibi. Defendant introduced in evidence records of the Hotel Monterey of New York City showing that he registered there under the name of R. J. Byrne on October 24, 1931, and departed October 25, and again registered there November 7, 1931, and remained until December 2, 1931. The records were identified by the persons who had made them and in whose custody they were, and were shown to have been made and kept in the usual manner and course of business of the hotel. They indicate defendant's presence at said hotel from November 7 to December 2, 1931. Other witnesses testified to knowing defendant, under the name of R. J. Byrne, and to seeing and being with him in New York at about the time of the robbery; times such that, if said testimony was true, defendant could not have been at Hallsville, Mo., on November 13, 1931. Several of these witnesses testified to being with defendant on the evening of November 13th, fixing the time by reference to the date of a prize fight which they attended together. Other evidence tended to show that defendant shipped a trunk from Boston, Mass., to the Monterey Hotel about November 7th. A young lady testified by deposition that she knew defendant in Boston and, prior to his going to New York about November 7th, saw him practically every evening; that on November 10th and again on November 13th she talked with him by telephone; he being then at the Monterey Hotel in New York; that on the second occasion, November 13th, the telephone call had come for her and had been left with her mother, and she called back, reaching defendant at said Monterey Hotel; that she heard from defendant several times during November, 1931, by telephone and mail; his letters being written on stationery of the Monterey Hotel and postmarked New York. Without going further into detail, it may be said that defendant's evidence presents strong and cogent proof tending to show his presence in New York at and about the time of the robbery, and to sustain his alibi. Such evidence was given by witnesses of apparently respectable standing. There is nothing in the record to cast suspicion upon their probity. We cannot say that this alibi evidence, strong though it was, called upon the court to direct a verdict for defendant in the face of Caldwell's positive testimony and identification of defendant as the man who held the gun upon him in the robbery. We mention it here for its bearing in relation to the instruction on conspiracy, to be later considered.

Defendant did not testify; neither did Griffith or Wilson Wade. It appears that Griffith and Wilson Wade were in the penitentiary at the time of the trial, on what charge is not shown. It may have been for complicity in this robbery; but that fact, if a fact, while probably inferred by the jury from the reference to their being so incarcerated, is not established by the evidence.

As bearing upon the propriety of the instructions complained of the further statement should be made that:

Herman Wade, a witness for the State, testified that two or three weeks before the robbery, he visited his father at Moberly, Mo. He did not give his father's name, but it may be inferred and seems to have been assumed by both sides that the father was Wilson Wade. Herman Wade testified that while so visiting his father he one day drove his father, defendant, and Griffith, in an automobile, to Higbee, Mo., not far distant from Moberly; that the trip to Higbee and back to Moberly took about an hour; that the other three, defendant, Griffith, and witness' father, got out of the car, just where is not stated, but inferably at Higbee, and may have talked together, but not in witness' hearing; that at some point on the trip, again not made clear, defendant and Griffith got out of the car, went into the brush and brought back "a bunch of things and something wrapped up in some old rags and they put them in the car and went to talking." Witness did not hear any of that conversation nor any conversation of those three persons during the trip, did not know what was "wrapped up in the old rags," and did not testify as to the identity or character of the "bunch of things" he said was so brought back and put into the car.

In this connection there was introduced in evidence a written statement, admittedly made and signed by Herman Wade, August 23, 1935 (after defendant's arrest), in which said witness stated that defendant was not the man (whom he knew as Farmer) who was with him, his father, and Griffith on the above-mentioned trip to Higbee, and did not fit the description of such man; describing the difference in size, appearance, and voice. He also admitted having made verbal statements corroborative of his written statement. He explained his signing of the written statement by saying that he was not then on the witness stand and that defendant (who was apparently out on bond) kept importuning him; "kept coming up there and aggravating me day and night." (It appears from Wade's testimony that defendant had called upon him several times before the statement was signed.)

Two witnesses, one who was sheriff in 1931 and another a police officer of Moberly, testified that a week or so before the robbery two men were brought to the police station in Moberly from the Wabash Railroad yards, apparently for questioning, either as to their presence in said yards, or about some supposed infraction of law. Both witnesses said that defendant "resembled" one of said men. One said that in his opinion one of said men was the defendant, but neither would say that he was convinced defendant was one of said men. They did not testify as to who the other man was. Both saw those men only for a few minutes; neither knew defendant at the time and neither had seen him since that time until after his arrest, some four years later.

The instructions assailed...