State v. Grant, 35078.

• Citation: 98 S.W.2d 761
• Decision Date: 17 November 1936
• Docket Number: No. 35078.,35078.
• Parties: STATE v. GRANT.
• Court: Missouri Supreme Court

98 S.W.2d 761

STATE v. GRANT.

No. 35078.

Supreme Court of Missouri, Division No. 2.

November 17, 1936.

Appeal from Circuit Court, Dunklin County; James V. Billings, Judge.

Roy Marsh Grant was convicted of robbery in the first degree, and he appeals.

Affirmed.

Bradley & Noble, of Kennett, for appellant.

Roy McKittrick, Atty. Gen., and Wm. W. Barnes, Asst. Atty. Gen., for the State.

WESTHUES, Commissioner.

Appellant was convicted in the circuit court of Dunklin county, on a charge of robbery in the first degree and sentenced to twenty years' imprisonment in the penitentiary. He appealed.

The information charged that on the 11th day of February, 1935, Grant robbed a mercantile store, by the use of a pistol, and obtained $1,046.38. Max Graber, a witness for the state, testified that he and a number of his brothers owned a mercantile establishment in Cardwell, Dunklin county, Mo.; that on the night of February 11, 1935, he closed the store about 7 o'clock and went home. His testimony was in part as follows:

"Q. How much was in the vault? A. $1046.38.

"Q. What happened after you closed your store about 7 o'clock this particular evening? A. I went to the barber shop and then I went and had a little supper and went home about 8 or 8:30 and pulled off my coat and went upstairs and then went downstairs to look at the stove and see about the fire and when I stepped in the dining room somebody said `Hold up your hands' and I looked at him and it was Roy Grant.

"Q. What did he have? A. He had a gun and he said `Come here, Max' and I went close to him and he stuck the gun right on my chest and he said `Have you got any money in your pocket?' and I said `Yes' and he took my keys and everything I had in my pocket and he took a rag and tied my eyes and got a black dress and put over my head and they tied my arms around and asked—"

Graber further testified that he thought there were three men, but he did not see the other two; that after they blindfolded him they took him through an alley to the store and forced him to open the vault; that then they took the money and locked him (Graber) in the vault, where he stayed until the next morning, when he was released by one of his brothers. Graber also testified that he had known Grant for about eight years and recognized his voice; that he had sold him goods at the store on a number of occasions. After Graber was released from the vault he informed the officers of the robbery, whereupon Grant was arrested.

Appellant testified that on the evening in question he was at home suffering from boils on his left arm. He was corroborated in this by members of his family.

The motion for new trial contains an assignment of error that there was no substantial evidence in the record to support the verdict. It is obvious that this assignment is without merit. It need not be further considered.

While appellant was upon the witness stand, he was asked by his counsel if he knew anything about the robbery of the Graber store. Appellant answered that he did, and knew who robbed the store. An objection by the state was made, and the trial court ruled that the answer was necessarily based on hearsay, as defendant had testified that he was at home at the time of the robbery. The answer was ordered stricken from the record and the jury instructed to disregard it. A discussion then ensued between court and counsel and the jury was taken from the courtroom. Counsel for defendant then informed the court that he had expected the appellant to answer the question in the negative. After the jury returned the defendant was asked if he had anything to do with the robbery, and he answered, no, that he was at home the entire day and night of February 11, the day of the robbery. Later during the trial the court reversed its ruling and stated to the jury that it had erroneously ordered the answer of the defendant stricken from the record. Then counsel for defendant asked to withdraw the question and answer, and the court gave him permission to do so. The ruling of the trial court, in striking the answer of appellant from the record, was assigned as error. As we view the situation, the trial court's ruling tended to aid the defendant. The court informed the jury that the answer was based on hearsay and should be disregarded. That the answer given was harmful to the defendant is obvious, but the trial court was not responsible for that....