State v. Fitzsimmons
| Decision Date | 04 January 1936 |
| Docket Number | 33969 |
| Citation | 89 S.W.2d 670,338 Mo. 230 |
| Parties | The State v. John Fitzsimmons, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied January 4, 1936.
Appeal from Circuit Court of City of St. Louis; Hon. Clyde C Beck, Judge.
Affirmed.
Verne Lacy for appellant.
(1) The court should have sustained the demurrer to the evidence offered by the defendant at the close of the whole case, because: (a) Testimony completely impeached rests upon the same basis as though no testimony had been introduced. 1 Wharton's Criminal Evidence (10 Ed.), sec. 13, p. 27; 1 Wigmore on Evidence (2 Ed.), sec. 411; State v. Huff, 161 Mo. 459, 61 S.W. 900. (b) It is necessary that the information allege, and the proof show, in accordance with the allegations in the information, the ownership of the property alleged to have been taken. 54 C. J., p. 1011, sec. 12; State v. Lawler, 130 Mo. 366, 32 S.W. 979; State v. Long, 278 Mo. 379, 213 S.W. 436. (c) It is necessary that the evidence show the identity of the person on trial with the person named in the information. State v. Leonard, 7 Mo.App. 571. (2) The expression by a prosecutor to a jury as to his personal opinion as to the guilt of a defendant constitutes reversible error. State v. Pierson, 56 S.W.2d 120; State v. Taylor, 51 S.W.2d 1003.
Roy McKittrick, Attorney General, and Wm. Orr Sawyers, Assistant Attorney General, for respondent.
(1) The court did not err for failure to sustain demurrer at close of State's case. State v. Cutter, 1 S.W.2d 97, 318 Mo. 687. (2) The court did not err for failure to sustain demurrer at close of State's case, because corpus delicti was shown by the evidence, because all the substantial evidence is sufficient to require the court to instruct the jury thereon and to support a verdict of the jury. State v. Hogle, 137 S.W. 21, 156 Mo.App. 378; State v. Forrester, 63 Mo.App. 534; Secs. 3662, 3681, R. S. 1929. (3) The court did not err for failure to discharge the jury because of assigned improper remark of prosecuting attorney in his argument, "If I thought the evidence in this case would not warrant a conviction in this case, I would dismiss it." State v. Blackmore, 38 S.W.2d 36; State v. Rogers, 161 S.W. 770, 253 Mo. 415. (4) The court did not err for failure to reprimand on his own motion because of assigned improper remarks of prosecuting attorney in his argument naming and referring to counsel for defendant. State v. Salisbury, 43 S.W.2d 1024; State v. Taylor, 18 S.W.2d 478; Secs. 3563, 3695, R. S. 1929.
Westhues, C. Cooley and Bohling, CC., concur.
Appellant was convicted in the Circuit Court of the City of St. Louis of the crime of robbery in the first degree, alleged to have been committed by means of a dangerous and deadly weapon. He received a sentence of twenty years' imprisonment in the penitentiary from which sentence he has duly appealed.
The facts briefly stated are: On the night of March 24, 1932, at about ten o'clock, two men entered a drug store located at the corner of Kingshighway and Lotus Street in the city of St. Louis, Missouri. One of the men, with a drawn revolver, stood guard over the customers, and the other man, identified as appellant, compelled Jerome Wilkerson, the operator of the store, to turn over to him the cash in the store and some narcotics. Appellant is alleged to have had a revolver in his possession, which he displayed at the time of the robbery.
It is alleged that the evidence was insufficient to sustain a conviction. Appellant, in his brief, points to three alleged fatal defects in the State's evidence. First, that the evidence was completely impeached and, therefore, no substantial evidence remained to sustain the verdict of the jury; second that the information charged ownership of the drug store to have been in a corporation and that the evidence failed to sustain that charge; third, that the evidence failed to identify the person on trial as the person named in the information. These in the order stated.
Three witnesses for the State identified appellant as the man who participated in the robbery. One of these witnesses, Edward Beckerle, testified that when appellant entered the store he recognized him as someone he knew; that about seven years prior to the trial he and the defendant had lived in the same neighborhood and at that time he often saw appellant at a confectionary; that he recognized appellant's picture prior to his arrest. Appellant's witnesses, a sister and his mother, admitted, while on the witness stand, that the family had lived in the neighborhood referred to in Beckerle's testimony and that appellant often loafed at the store mentioned. Wilkerson, Beckerle and a witness named Matthias Lydon all testified that they saw appellant's face, when on several occasions during the robbery he lowered a handkerchief which he had used as a mask. The reputation of these witnesses was not questioned. Appellant lays much stress upon the fact that the witnesses did not, on the night of the robbery, observe a scar on the face of the man they identified as appellant. Appellant had a visible scar upon his face at that time. Appellant also urges that the witnesses' testimony should not be considered as substantial because, under the evidence, it was disclosed that they had little opportunity to observe the man who committed the robbery. We are of the opinion that it was a question for the jury to decide as to whether appellant was the man referred to and identified by these witnesses. We cannot hold such evidence insufficient to sustain a verdict of guilty. The identification of appellant in this case is supported by much stronger evidence than the identification held to have been sufficient in State v. Blackmore, 38 S.W.2d 32, l. c. 34 (1, 2), 327 Mo. 708; State v. Scobee, 331 Mo. 217, 53 S.W.2d 245, 251, and State v. Hart, 56 S.W.2d 592, 331 Mo. 650.
Appellant offered substantial evidence of an alibi. The issues, therefore, presented a question for a jury to decide. [See cases, supra.] This case does not fall within the rule announced in State v. Huff, 161 Mo. 459, 61 S.W. 900, cited by appellant. In that case the principal witness for the State was thoroughly impeached. Note what the court said:
It is obvious that that rule is not applicable to the present situation.
The information alleged ownership of the drug store and property taken to have been in J. A. Wilkerson Drug Company. The proof disclosed Jerome A. Wilkerson to have been the owner. The information, however, charged, and the proof showed, that the property was taken "from the person and in the presence of Jerome A. Wilkerson and against the will of the said Jerome A. Wilkerson then and there, with force and violence as aforesaid." The variance in the proof, under the circumstances, did not prejudice appellant. It would have been sufficient to sustain a charge of robbery in the first degree if the evidence had failed to disclose the legal owner of the property taken, provided the evidence showed, as in this case, that the party robbed had legal possession of the property. [54 C. J. 1013, sec. 17.] The case of State v. Lawler, 130 Mo. 366, 32 S.W. 979, cited by appellant as an authority, was overruled on the point before us in the case of State v. Montgomery, 181 Mo. 19, l. c. 29, 79 S.W. 693. In State v. Huffman, 238 S.W. 430, l. c. 436, this court said:
In Commonwealth v. Weiner, 255 Mass. 506, 509, 152 N.E. 359, the Supreme Court of Massachusetts said:
[See, also, People v. Skally, 174 N.E. 525, 342 Ill. 450; Estes v. State (Ga.), 161 S.E. 165; Jones v. State (Ga.), 155 S.E. 797.]
Our statute, Section 3562, Revised Statutes 1929 (Mo. Stat. Ann., p. 3158), provides that a variance between the information and the proof, as to the ownership of property, shall not be deemed grounds for an acquittal unless such variance be material and prejudicial to the defense of the defendant. The decisions of our courts are in harmony with this statute. [See State v. Fike, 24 S.W.2d 1027, 324 Mo. 801.] Since appellant was not prejudiced by the variance the point is ruled against him.
The third point, and the evidence failed to identify the person on trial as the person named in the information, is based upon the fact that appellant's true name is claimed as James and not John. Section 3561, Revised Statutes 1929 (Mo. Stat. Ann., p. 3157), provides in part as follows:
"If a defendant be...
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