State v. Greenwade

• Citation: 72 Mo. 298
• Parties: THE STATE v. GREENWADE, Appellant.
• Decision Date: 31 October 1880
• Court: United States State Supreme Court of Missouri

72 Mo. 298

THE STATE

v.GREENWADE, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Bates Circuit Court.--HON. JNO. D. PARKINSON, Judge.

AFFIRMED.

Smith & Abernathy, E. E. Swift and B. A. Seaver for appellant.

J. L. Smith, Attorney-General, and Chas. T. Forbes, Prosecuting Attorney of Bates county, for the State.

NAPTON, J.

This was an indictment for the robbery of one George Ledger. There is no controversy about the robbery of Ledger by persons alleged to be accomplices of defendant, but objections are made to the rulings of the court on the trial, and principally to the admission of proof that about the same time his accomplices robbed one Holt. The facts of the case, as developed on the trial, are not disputed. The defendant was not present at the robbery of Ledger, nor of Holt. By the evidence of an accomplice, it appeared that he and others made an arrangement to rob Holt, by which arrangement the defendant was to remain in town and signal his accomplices when Holt left. This signal was the firing of a pistol. The signal was given, but it so happened that Ledger passed first, and the accomplices, thinking it was Holt, attacked him and robbed him. They discovered their mistake before robbing him, but nevertheless proceeded to take from him what he had, which was only forty cents.

1. EVIDENCE OF ONE OFFENSE on TRIAL FOR ANOTHER.

After the witness Mockabee (who was an accomplice) had proved the conspiracy to rob Holt, Holt was called as a witness, and the defendant objected to any evidence being given by Holt to the robbery of himself, on the ground of irrelevancy, which evidence the court refused to allow until further consideration. Ultimately, however, Holt was recalled, and the defendant again objected to any testimony of the Holt robbery, for which defendant was then indicted, because the Holt robbery was a different transaction from the Ledger robbery then on trial. The court overruled the objection and admitted the testimony of the Holt robbery, to which exceptions were taken. There is no doubt that the State had no right to prove separate and distinct robberies from the one for which defendant was on trial; but if the evidence tends to prove the commission of the offense for which the prisoner stands indicted, it is no valid objection to it, that it tends to prove another and distinct offense. The two robberies occurred upon the same night and within a few minutes of each other, and in pursuance of the same conspiracy. The complicity of the defendant with one was necessary to show his complicity with the other, and, therefore, the court admitted the evidence of both, although the robbery of Holt was the main design and that of Ledger merely incidental.

I do not understand this to be in conflict with the decision of this court in State v. Reavis, 71 Mo. 419, but to be in accordance with the decision in State v. Harrold, 38 Mo. 496. In State v. Reavis there were proofs offered of larcenies at other times, having no connection with the one charged, and this evidence was held inadmissible. And there were indictments offered in evidence for three distinct crimes, which were only calculated to prejudice the jury.

2. _____: corroboration of accomplice testimony.

In the present case, there was a single and continuous accomplishment of a fixed and common design in which the defendant was alleged to be a mover, and although the conspiracy was already proved by an accomplice, the necessity of corroboration is conceded, and what could more strongly do so, than the establishment of the subsequent robbery of Holt? The instruction given by the court on this point, which was undoubtedly correct, shows the propriety of this corroborative evidence. “The evidence of an accomplice is admissible; yet his evidence as to matters material to the issue ought to be received with great caution by the jury; but in this case the jury are to determine from the evidence whether the said accomplice has been corroborated, and how far the same has been done, and in determining as to the guilt or innocence of the defendant as to the crime charged, they will find their verdict after weighing candidly the whole of said evidence.” The propriety of this instruction is not questioned. 1 Greenleaf on Ev., part 3, §§ 379, 380, 381. The evidence of Holt was important corroborative testimony to establish the conspiracy testified to by the accomplice Mockabee. This accomplice swore to the conspiracy to rob Holt; that defendant was one of the conspirators; that his part in the matter was to signal his confederates when Holt left, and that he did so, and that by mistake Ledger was first assaulted and robbed; but all this depended on the evidence of an accomplice, which, without corroboration, has been held by some courts insufficient to convict. Now, the fact that Holt was ultimately assaulted and robbed, certainly tends to clinch the testimony of the conspiracy as stated by the accomplice.

3. PRACTICE: exceptions to evidence.

The point made in regard to the rejection of the evidence of a co-defendant, is not preserved in the bill of exceptions. State v. Marshall, 36 Mo. 400; State v. Connell, 49 Mo. 282; Vineyard v. Matney, 68 Mo. 105.

4. COURTS: disqualification of judge for prejudice.

The next point for the reversal of the judgment is the refusal of the judge who presided at the trial to grant a change of venue, on the application of defendant, and his oath, that this judge would not give the plaintiff a fair trial, supported by the affidavit of two reputable persons, not of kin to or counsel for the defendant. To a proper consideration of this point, it is necessary to recur to a history of this trial from its inception to the time when the motion was filed.

The indictment was found at the March term, 1880. On the 16th day of that month the defendants filed their application for a change of venue, on account of the prejudice of the inhabitants of the county of Bates, and at the same time, filed an application stating that the Hon. Foster P. Wright, judge of the circuit court in said county, would not impartially decide their application for a change of venue, on account of the prejudice of the inhabitants of the county--which last application was supported by the affidavit of the defendants and by that of two reputable citizens. Thereupon the judge ordered an election of a special judge to decide said application, and the result of this election was the election of F. Colman Smith, Esq. Immediately thereafter the defendants filed their objections to said Smith, and pending this, said Smith refused to serve as special judge. Then an order was made by Judge Wright that, as he was disqualified to try the motion by reason of the affidavits heretofore referred to, and as it was his opinion that no suitable person to try said motion would serve when elected as such special judge, and the indictment being for a felony, it was ordered that said cause be set for the third Monday in May, 1880, at which time an adjourned term of the court would be held, and it being agreed by the parties that the Hon. J. D. Parkinson, judge of the 25th judicial circuit, be selected to try and determine said motions; it was further ordered that said judge be notified of his selection. On the third Monday in May Judge Parkinson appeared and decided the motion against defendants, and they filed a bill of exceptions thereto, preserving all the evidence, but as no objections are made to Judge Parkinson's decision, it is unnecessary to notice the details of the evidence. At the same term they filed an application for a continuance, which was granted.

At the July term, which commencenced on the 12th day of July, Judge Wright announced his inability to hold the term by reason of sickness in his family, and, therefore, made an order for the election of a special judge, and Mr. Page was elected and accepted. On the 13th day of July the defendants filed their motion, stating that they wished some circuit judge to be sent for to try their case, as they were anxious for a trial, and Judge Page could not sit, having been of counsel...