State v. Farmer

• Decision Date: 07 July 1939
• Docket Number: No. 36410.,36410.
• Parties: STATE v. FARMER.
• Court: Missouri Supreme Court

130 S.W.2d 572

STATE v. FARMER.

No. 36410.

Supreme Court of Missouri, Division No. 2.

July 7, 1939.

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

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

Judgment reversed and cause remanded.

Frank G. Harris, of Columbia, Roy D. Williams, of Boonville, and Ira B. McLaughlin, of Kansas City, for appellant.

Roy McKittrick, Atty. Gen., and W. J. Burke, Asst. Atty. Gen., for respondent.

COOLEY, Commissioner.

Appellant, defendant below, was convicted of robbery in the first degree committed by means of a dangerous and deadly weapon, sentenced to ten years' imprisonment in the penitentiary and has appealed. This is the second conviction and second appeal in this case. On the first appeal we reversed the judgment and remanded the case because of certain errors in the instructions. State v. Farmer, 111 S.W.2d 76. The instant appeal also presents questions as to the instructions, though not those presented on the first appeal. Also, certain criticisms of the information made on the first appeal have been obviated by amendment. For the purpose of this appeal a brief statement of the facts will suffice.

The Bank of Hallsville, in Boone County, was robbed on November 13, 1931, and about $900 was taken. Two men entered the bank and at the point of a pistol in the hands of the defendant herein, as the state's evidence indicates, "held up" the assistant cashier, Velton G. Caldwell, then alone in and in charge of the bank, and perpetrated the robbery. There was some evidence indicating that another man waited outside the bank while the robbery was being perpetrated. The robbers escaped. Later if appears that two, other than defendant, were convicted and are serving terms in the penitentiary for complicity in the robbery. Some time in 1935 this defendant was arrested in New York. Caldwell's attention was called to a picture of him which he thought was a picture of the man who had held the gun on him in the robbery. He went to New York, saw the man in question and, he testified, recognized him as the same man. He identified defendant at the trial as the man who had thus held the pistol on him in the robbery. The defense was an alibi, the defendant introducing evidence, by depositions, tending strongly to show that he was in New York at the time of the robbery. He did not testify himself. For detailed statement of the facts see our opinion on the first appeal, State v. Farmer, supra. We there held that the state made a case for the jury. We adhere to that ruling. The facts developed on the instant trial are substantially similar to those developed on the former trial. Such variations as there may be in details do not weaken the state's case.

On the question of alibi defendant introduced, with other evidence, certain registration cards claimed and shown by evidence in his behalf to have been signed by himself personally, in the name of R. J. Byrne (said to be his true name), which, if genuine, tended to show his presence in a hotel in New York City at the time of and shortly prior to the robbery when, according to the state's evidence, he was in Missouri, — in short tended strongly to support defendant's alibi. We said on the former appeal, and we repeat, defendant presented strong evidence of alibi. A witness, Mr. Sapp, who was and had been for about fifteen years teller and assistant cashier of the Boone County National Bank, identified signatures and writing of defendant, made at his bank and personally known to him to be defendant's writing. Mr. Sapp sufficiently qualified to give an opinion as an expert as to the genuineness of the defendant's purported signature on the hotel registration cards above mentioned. He testified that in his opinion the signature on the cards was that of defendant. Bearing upon this subject the court gave the following instruction:

"The court instructs you that opinion of expert an witness who has testified before you, though proper for your consideration and entitled to receive at your hands all that weight which reasonably and justly belongs to it it is nevertheless not binding on you against your own judgment, but should be weighed, and, especially so where it differ, and should be compared by you, and such effect allowed by you to it as you think right, remembering that on you alone rests the responsibility of a correct verdict."

It is contended by appellant that said instruction invaded the province of the jury, singled out and improperly commented on the opinion evidence of an expert witness, disparaged and invited disregard of such evidence and was "unintelligible, confusing and misleading" in that it told the jury the opinion evidence was not binding on the jury but should be weighed especially where it differs (with what not stated) and should be compared (with what not stated).

We are of opinion said instruction was prejudicially erroneous. As we have said defendant presented a strong alibi defense. (See opinion on former appeal, where the facts are detailed.) The question of whether or not the purported signature of defendant on the registration cards was his genuine signature was an important factor in his alibi defense. The state's evidence tending to identify defendant as one of the perpetrators of the robbery, while in our opinion sufficient to make that a question for the jury, was, on the whole, none too strong, so that it may justly be said the case is a somewhat close one. In Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84, this court en banc condemned an instruction relative to testimony of experts similar in principle and...