State v. Frost

• Decision Date: 20 December 1926
• Docket Number: 26917
• Citation: 289 S.W. 895
• Parties: STATE v. FROST
• Court: Missouri Supreme Court

289 S.W. 895

STATE v. FROST

No. 26917

Supreme Court of Missouri, Second Division

December 20, 1926

Don C Carter, of Sturgeon, for appellant.

North T. Gentry, Atty. Gen., and J. Henry Caruthers, Asst. Atty Gen., for the State.

OPINION

WHITE J.

The defendant was charged by information, in the circuit court of Boone county, with grand larceny. Upon his application a change of venue was awarded to Cooper county, where on trial November 6, 1925, a jury found him guilty and assessed his punishment at two years in the penitentiary. Judgment accordingly, from which he appealed.

July 14, 1925, John Morris owned and operated in Columbia a restaurant known by the alluring appellation of 'Greasy Spoon.' The defendant, Matt Frost, designated by the sobriquet 'Smack Out,' was a customer.

The Morris restaurant faced east on Ninth street. Directly north of the restaurant was a barber shop. In the rear of the same building with the barber shop was the kitchen used by Morris in connection with his restaurant. North of the barber shop was an alley running east and west. In the restaurant were two counters running along the sides. As we gather the description of the premises from the evidence, a cash register and a cigar stand extended along the front between the ends of those counters, while a door opened to the front from one end of the cigar case and cash register. Just back of and underneath the cigar case was the safe.

Morris had a wallet in which he put about $ 100 in currency and about $ 35 in checks. Ten or twelve dollars in silver were in the bottom of the box. He placed this wallet in the safe, left one Charlie Long in charge about 7:10 p. m., and went home. The safe was not locked. He returned about 11:30 in the evening on the call of Charlie Long informing him that the safe had been robbed.

Charlie Long testified that he was a student in the University and worked in the restaurant from 5 o'clock until it closed at night, about 1:30 a. m. On July 14th, Smack Out and Jimmie Via came into the restaurant about 10:30 or 11 o'clock. They came to the counter on the north side and ordered some sandwiches which they ate and paid for. Long then took the dishes back to the kitchen, and Jimmie Via went to the kitchen at the same time. Long came back and found Matt Frost inside the counter, stooping down in front of the safe. He raised up and Long heard the click of the safe as it closed. Frost came out from behind the counter and walked fast toward the door. Long called to him to stop. Frost mumbled something, looked backward, and kept going. Long opened the safe and saw that the wallet containing the money was gone. He went out after Frost, chased him down the alley, brought him back into the restaurant, and demanded that he give up the money. Frost denied that he had the money. In the restaurant at the time was one Ambrose Hathman who searched Frost and found no money. Long went to the front door of the restaurant and saw Jimmie Via come out of the alley and go along Ninth street, pushing something down in his trousers. Long further testified that from the time Morris left there was no one inside the counter nor near the safe but himself until Jimmie Via and Matt Frost came into the restaurant. No one had been in the front part of the restaurant about the safe and cash register.

Claude Pauley testified that usually he had lunch at 11 or 12 o'clock; that he went to the Greasy Spoon that night and saw Charlie Long bring Frost back by the arm out of the alley and take him into the restaurant.

The defendant testified that he didn't leave the restaurant at all; that when he started to the door Long stopped him and accused him of taking the money. He denied taking the money and denied that he had been out. Frost put his reputation in issue. Seven witnesses swore that he had a good reputation -- some of them 'as far as they knew.' The state introduced six witnesses, among them the sheriff and a policeman, who swore that his reputation was bad.

I. Error is assigned to the action of the court in admitting incompetent evidence. When the defendant was on the stand, he testified that he had lived in Kansas City. The state's attorney asked him if he had been convicted of an offense in Kansas City. His reply was, 'No, sir.'

Defendant objected and asked that the prosecuting attorney be rebuked. The court then ruled that the prosecutor might ask if defendant had been convicted of any crime. The defendant excepted to the ruling of the court and the refusal to rebuke counsel. Following this, it was shown that the defendant had been convicted two or three times in Boone county for different offenses. It was entirely proper for the state, on cross-examination, to ask if the defendant had been convicted in Kansas City or elsewhere. The prosecutor was guilty of no conduct which required rebuke.

Again, on cross-examination, the defendant was asked if he saw Pauley. He answered that Pauley came in after it was all over. Then these questions were asked and answered:

'Q. He didn't see you come out of the restaurant and go back into the alley? A. No, sir.

'Q. And he didn't see Charlie Long catch you? A. No, sir.

'Mr. Carter: If the court please, I think that is all improper -- I never went into that on direct examination.

'The Court: Well, I think you went into it far enough to open that matter up.

'To which ruling the defendant objected and excepted.'

No further questions were asked by the state's attorney along that line. So, the ruling, if erroneous, was harmless as nothing was done under it after the objection was made.

While one McAdams was on the stand, a witness for the defendant, the state's attorney, in cross-examination, asked him who his partner was in the meat market. His answer was R. S. Burkebile. The state's attorney then asked this question:

'Q. Did you hear Mr. Burkebile say that he would not let Matt Frost light in his place of business?'

The answer was:

'Never in my life; no, sir.'

The court sustained objection to the question. Defendant's attorney then asked that the prosecuting attorney be reprimanded for asking the question, and the court instructed the jury to disregard entirely remarks of that kind.

In the cross-examination of one of the defendant's character witnesses, the state's attorney asked the witness if he had not heard it discussed around Columbia that the defendant was a big bootlegger. On objection of defendant, the trial court said:

'Well, the jury will entirely disregard that statement or anything connected with it and be governed entirely by the evidence in this case.'

The defendant thereupon excepted to the ruling of the court in failing to reprimand the state's attorney at defendant's request, and the trial proceeded.

The statements of the trial judge quoted are more or less a rebuke to the state's attorney for asking such question. The force and effect of a reprimand cannot always be determined by the language used. It may depend upon the circumstances and upon the emphasis with which the court pronounces it. A reprimand is only for the purpose of counteracting the prejudicial effects of the objectionable questions or statements. It should not be such as to give advantage to the side objecting. It is largely within the discretion of the trial judge as to how much he should...