State v. Friedman

• Decision Date: 26 February 1926
• Docket Number: No. 26647.,26647.
• Citation: 280 S.W. 1023
• Parties: STATE v. FRIEDMAN.
• Court: Missouri Supreme Court

280 S.W. 1023

STATE v. FRIEDMAN.

No. 26647.

Supreme Court of Missouri, Division No. 2.

February 26, 1926.

Appeal from Circuit Court, Ray County; Ralph Hughes, Judge.

Morris Friedman was convicted of robbery in the first degree, and he appeals. Affirmed.

Julius C. Shapiro, of Kansas City (Bert S. Kimbrell, of Kansas City, of counsel), for appellant.

Robert W. Otto, Atty. Gen., and William L. Vandeventer, Asst. Atty. Gen., for the State.

WALKER, P. J.

Morris Friedman, Pete Carolla, and Sam Strada are charged by information in the circuit court of Clay county with robbery in the first degree. A change of venue was awarded to Ray county, a severance granted, and on a trial to a jury the defendant was found guilty and sentenced to 10 years' imprisonment in the penitentiary. From this judgment he appeals.

About 11:30 o'clock, p. m., Cecil Blaine was driving alone in an automobile from Orrick, in Ray county, to Liberty in Clay county. About a half an hour later, while en route and about 2 miles from Missouri City, a large automobile, in which there were 3 or 4 men, approached rapidly from the rear and ran their car across the road in front of and about 10 or 15 feet from Blaine's car. These men alighted from the car, and Carolla held a flashlight and a revolver on Blaine and ordered him to "stick up his hands." Friedman, with a revolver in his hand, went to the other side of Blaine's car, and Strada stood in front of it. While Blaine was thus menaced, these men took from him $50 or $60 in money and his watch. They then ordered him out of his car and told him to "trot down the road." Friedman and Carolla returned to their car, and Strada got into Blaine's car, and they all drove away. The location of this crime was in Clay county. Blaine ran to the house of a man named Shepherd near at hand and called up the marshal of Liberty, giving him a description of the robbers. He then walked to Liberty, some 9 miles distant. The robbery occurred on Saturday night. On Monday morning Blaine reported the robbery to the chief of police at Kansas City, some 23 or 24 miles away, and gave him a description of the robbers. On Tuesday morning Blaine, having been notified that 3 men had been arrested in Kansas City and were being held for investigation, whether from the descriptions furnished by him or on suspicion the record does not disclose, as requested by the police, he went to the jail in that city and identified them as the men who had robbed him. His identification was unequivocal.

There was evidence for the defense that Carolla and Friedman had been arrested by the police of Kansas City during the afternoon of May 3, 1924, and were held for investigation; Carolla being released at 8:30 p. m., and Friedman at 10:50 p. m. What was shown to be a police record designating the time of Friedman's release was introduced in evidence. The officer, by whom it was sought to verify these entries, said he did not know who made it, and he did not personally remember when the releases occurred; that the entries were supposed to be correct. Friedman denied his complicity in the robbery, and said he was arrested by the police May 3, 1924, and was in jail until about 11 o'clock that night, when he was released on bond requiring him to report at police headquarters. A clerk in a drug store said he saw Friedman, with whom he was acquainted, at the drug store "right about 11 o'clock" on the night of May 3, 1924; that he did not at the time know Friedman's name, but knew him casually. Cross-examination of the officer, who testified as to the time entry purporting to show when the defendant was released, revealed that this entry and that of the time of Carolla's release were the only instances he had known where the time of releases were entered on the book where these appeared, and that this record in which these entries appear was accessible to others than the police. It was also shown that the defendant, while in jail at Liberty awaiting trial for this offense, attempted to escape, and, upon being discovered in the act, was handcuffed, and thereafter escaped from the jail, but was apprehended and brought back before he had gotten outside of the limits of Liberty.

I. The identification of the defendant by the prosecuting witness as one of the men who robbed him bears the impress of truth, when subjected to the tests applied to determine the verity of human testimony. The prosecuting witness, the morning after the robbery, sent to the chief of police of Kansas City what afterwards was shown to be correct descriptions of the defendant and his associates. The succeeding day, upon being requested by the chief of police to look over those confined in the city jail, he went to that city, and, being afforded an opportunity to "look over" the inmates, he readily selected the defendant and his associates from those submitted to his inspection. His conclusion in this regard, unaffected as it is by any indication of ulterior influences, and based as it must have been upon the impression made upon his mind at the time the crime was committed, as to the personnel of the defendant, was not only ample to submit the question to the jury of the presence of the latter at the place of the crime, Tout carried with it a well-founded conviction of its correctness. We have uniformly held that, where testimony bears the impress of truth, we will not interfere with a conviction as against the weight of the evidence. The trial court did not err, therefore, in overruling the defendant's peremptory instruction in the nature of a demurrer to the evidence.

II. It is contended that instruction No. 3, given by the court, is erroneous. It told the jury that, if they believed that the defendant made the assault and took the property mentioned in the information from the said Cecil Blaine, in his presence and against his will, by force and violence, etc., they should find the defendant, Morris Friedman, guilty, and assess his punishment, etc. In support of defendant's contention State v. Johnson, 20 S. W. 302, 111 Mo. 578, and State v. Massey, 201 S. W. 541, 274 Mo. 578, are cited.

In State v. Johnson, the latter and Maria Raven, defendants, and wife of the complaining witness, Lee, who was not living with her husband, went to the house of Lee for the ostensible purpose of getting some clothes for Lee's child. While there they got into an altercation, and defendant Johnson knocked Lee down, forced him into another room, and held him, while Maria Raven opened a trunk and took therefrom three $20 gold coins, which she carried away. In that case there was no evidence of any concert of action or conspiracy, and it was not shown in any way that defendant Johnson took the money or had anything to do with the taking of it. This court held that the question of defendant having taken the money should not have been submitted to the jury, because no concert of action was shown.

In State v. Massey, the court says that:

"If there were no proof either that defendant assaulted the prosecuting witness or that he took from the latter's person any of the property of which such witness was robbed, then this contention must be sustained, and the case reversed"—citing State v. Johnson, 20 S. W. 302, 111 Mo. 578.

The court held, however, that this instruction was not error, because it was not shown...