State v. Gabriel

• Decision Date: 03 May 1938
• Docket Number: 35824
• Parties: The State v. Ralph Gabriel, Plaintiff in Error
• Court: Missouri Supreme Court

116 S.W.2d 75

342 Mo. 519

The State v. Ralph Gabriel, Plaintiff in Error

No. 35824

Supreme Court of Missouri

May 3, 1938

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge.

Affirmed.

Lillie Knight for plaintiff in error.

(1) It was error for the court to refuse the defendant's instruction in the nature of a demurrer at the close of the State's evidence, for the reason that the evidence was wholly insufficient to sustain the allegations in the information, and to prove defendant guilty of the offense charged. State v. Goodson, 252 S.W. 389, 299 Mo 321; State v. Davis, 232 S.W. 211; State v Baker, 46 S.W. 194, 144 Mo. 323; State v. Adkins, 222 S.W. 431; State v. Kinnamon, 285 S.W. 62, 314 Mo. 662; State v. Hall, 125 S.W. 229, 141 Mo.App. 701. (2) The court erred in refusing defendant's instruction in the nature of a demurrer at the close of all the evidence. State v. Lewis, 69 Mo. 92; State v. Baldwin, 281 S.W. 940; State v. King, 74 S.W. 627, 174 Mo. 647; State v. Smith, 289 S.W. 590. (3) The evidence in the case does not support the allegations in the information. 31 C. J. 835, sec. 438; State v. Smith, 31 Mo. 120; Taylor v. State, 130 Ind. 66; State v. Jenkins, 36 Mo. 372; State v. Farrar, 38 Mo. 457; State v. Davidson, 38 Mo. 374. (4) It was error for the court to permit Dr. Snavely to testify that the cut on complaining witness's head was caused by a blunt instrument. (5) It was error for the court to refuse to discharge the jury because of improper remarks of the prosecuting attorney in calling the defendant and his witnesses, "crooks, thugs and criminals." State v. Schneider, 168 S.W. 604; 12 Cyc. 571; State v. Upton, 109 S.W. 820, 130 Mo.App. 316; State v. Lee, 66 Mo. 167; State v. Pagels, 92 Mo. 311; State v. Furgeson, 152 Mo. 99; State v. Hess, 240 Mo. 147; State v. Woolard, 111 Mo. 248; State v. Cook, 132 Mo.App. 167; State v. Thavanot, 125 S.W. 473. (6) The verdict of the jury was the result of the bias, prejudice and passion of the jury and the improper conduct of certain of the jurors in discussing and commenting on defendant's character, and in stating that they personally knew that defendant was a man of bad character. 16 C. J., pp. 1086, 1173, secs. 2551, 2682. (7) The verdict of the jury was not a unanimous verdict as required by law but the last ballot cast by the jury one ballot was "not guilty." Mo. Const. Art. II, Sec. 28; Sec. 3700, R. S. 1929. (8) The court erred in failing to properly poll the jury.

Roy McKittrick, Attorney General, and W. J. Burke, Assistant Attorney General, for respondent.

(1) It was not error for the court to refuse the defendant's instruction in the nature of a demurrer at the close of the State's evidence. State v. Barr, 78 S.W.2d 104; State v. Starling, 207 S.W. 766; State v. Meadows, 51 S.W.2d 1036, 330 Mo. 1020; State v. Sanders, 4 S.W.2d 815; State v. Wilson, 237 S.W. 776. (2) The court did not err in refusing defendant's instruction in the nature of a demurrer at the close of all the evidence. State v. Starling, 207 S.W. 768; State v. Vigus, 66 S.W.2d 854; State v. Kaner, 93 S.W.2d 673. (3) The evidence in the case supports the allegations in the information. Sec. 3562, R. S. 1929; State v. Riddle, 23 S.W.2d 179; State v. Caviness, 33 S.W.2d 940, 326 Mo. 992; State v. Batey, 62 S.W.2d 450; State v. Blackmore and Godsey, 38 S.W.2d 32, 327 Mo. 708. (4) It was not error for the court to refuse to discharge the jury because of improper remarks of the prosecuting attorney in calling the defendant and his witnesses, "crooks, thugs and criminals." State v. Arnett, 92 S.W.2d 902; State v. Wilkins, 100 S.W.2d 897; State v. Rosegrant, 93 S.W.2d 973; State v. Short, 87 S.W.2d 1031, 337 Mo. 1061; State v. Reagan, 108 S.W.2d 391. (5) The verdict of the jury was not the result of the bias, prejudice and passion of the jury and the improper conduct of certain of the jurors in discussing and commenting on defendant's character, and in stating that they personally knew that defendant was a man of bad character. This ground is too general and is not properly reserved in motion for new trial. State v. Dollarhide, 87 S.W.2d 156, 337 Mo. 962; State v. Sinovich, 46 S.W.2d 879, 329 Mo. 909; State v. Rumfelt, 228 Mo. 455, 128 S.W. 737; State v. Short, 87 S.W.2d 1031, 337 Mo. 1061. (6) It was not error for failure to poll the jury. State v. Burnes, 49 S.W. 1005, 148 Mo. 167; Sec. 3700, R. S. 1929.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

This case comes here on writ of error from the Circuit Court of Pettis County. For convenience we shall refer to defendant in error as plaintiff, or the State, and to plaintiff in error as defendant, as they were styled below.

Defendant, Gabriel, was charged with robbery in the first degree. The information also alleged two prior convictions of felony, service of the prior sentences imposed and discharge from those sentences, under what is called the Habitual Criminal Act, Section 4461, Revised Statutes 1929 (Mo. Stat. Ann., p. 3063). At the trial the former convictions, incarcerations and discharges were admitted, so that if defendant was rightly convicted of the robbery charged herein the punishment assessed, which was life imprisonment, was proper.

The State's evidence tended to show that on December 12, 1936, at Sedalia, Missouri, George Walz, the complaining witness, was assaulted by defendant and forcibly robbed of about $ 5 in money and a pocketbook or purse of small, but some, value. Walz testified that he and his wife had come to Sedalia that afternoon in an automobile and that, after parking his car he had gone to a saloon where he met defendant, whom he had not previously known. According to his testimony he was in and out of the saloon two or three times during the day and had altogether two or three drinks of whiskey. He left the saloon the last time about two-thirty P. M., went to where his car was parked and tried to start it, but could not. Defendant came by and tried to crank the car but could not get it started. Walz then sent for some friends to help get his car started and at some time during these proceedings went to a store and made some purchases. He testified that as he was returning to his car defendant stepped out of an alley and asked him for a drink of whiskey; that he replied that he had none; that defendant then asked him, "Well, you have got a pocketbook, haven't you?" to which he replied, "Yes, a little old purse but it's empty;" that he was walking along during this conversation with defendant beside him; that when he told defendant he had a purse but it was empty defendant struck him on the temple with some instrument, which he did not see and could not describe, knocking him down and momentarily rendering him unconscious; that he "came to" and found defendant "astraddle" of him, trying to get his pocketbook "and I was fighting both hands away from my pocketbook." Defendant got the pocketbook, which Walz testified contained about $ 5 in money. Walz said that he again lapsed into unconsciousness or semi-consciousness and when he "got to himself" he was at his car. By other witnesses it was shown that his head was then bleeding and he complained of having been slugged and robbed. He testified that he recognized defendant at the time of the robbery and identified defendant at the trial as his assailant.

It appears further from Walz's testimony that he had observed defendant and one Tom Craig together a good deal that day, and that after fully regaining consciousness and complaining of having been robbed he went back to the saloon where he had first met defendant, finding Craig there, and forcibly took Craig to the police station, where, it appears, he signed an affidavit or complaint charging Craig with having robbed him. His explanation of this action was that, having seen Craig and defendant together he thought Craig would be able to help identify defendant to the officers and help locate him, defendant not then having been apprehended, and that he signed the complaint against Craig because it was explained to him that "these two boys were working together and that either could be charged with the robbery;" that the police prepared the affidavit and he signed it. Craig was later tried and acquitted.

Defendant, testifying for himself, denied the robbery. He said that after trying unsuccessfully to help Walz start his car, at about two-thirty P. M., he went back to the saloon and remained there till about four or four-thirty P. M. (It appears from the State's evidence that the robbery occurred before four or four-thirty P. M., though the time is not definitely shown, except that it seems to have been before dark.) Craig, a witness for defendant, testified that he was with defendant most of the time that afternoon till about three-thirty P. M. His testimony can hardly be considered as tending to show an alibi.

Defendant contends that his demurrer to the evidence should have been sustained. This contention seems to be based first upon the hypothesis that Walz was so drunk at the time of the alleged robbery as not to be conscious of what happened and was therefore incompetent at the trial to give testimony upon which a conviction may rest. This contention is untenable. Walz's testimony was that he had had some two or three drinks of whiskey during the day, but it does not show that he was drunk. Several witnesses saw him when he got to his car, with bleeding head, very soon after the robbery. None of them gave any testimony tending to show that he exhibited symptoms of intoxication. The only evidence in the record that Walz had been drinking, other than his own testimony, was the testimony of defendant's witness, Craig, who said that Walz, when he left the saloon (before the...