State v. Gregory

• Decision Date: 30 June 1936
• Docket Number: No. 34536.,34536.
• Citation: 96 S.W.2d 47
• Parties: THE STATE v. WALTER GREGORY, Appellant.
• Court: Missouri Supreme Court

96 S.W.2d 47

THE STATE v. WALTER GREGORY, Appellant.

No. 34536.

Supreme Court of Missouri.

Division Two, June 30, 1936.

Appeal from Pemiscot Circuit Court. — Hon. James V. Billings, Judge.

REVERSED AND REMANDED.

R.F. Baynes and Bradley & Noble for appellant.

(1) The court erred in refusing to grant defendant a new trial for the reason that the evidence is not sufficient to support the verdict. State v. Liston, 315 Mo. 1313, 292 S.W. 45; State v. Daubert, 42 Mo. 242; State v. Young, 237 Mo. 170, 140 S.W. 873; State v. Wilton, 225 S.W. 965; State v. Kinnamon, 314 Mo. 662, 285 S.W. 62. (2) The court erred in permitting the witness Fred Thompson over objection and exception to testify: (a) As to where he, Thompson, thought defendant was at the time of the alleged robbery. Such evidence was incompetent. What Thompson thought as to defendant's whereabouts was irrelevant, and what he told the sheriff, could not justify his, Thompson's, failure to identify defendant at the time of the robbery, if defendant was present. Thompson had known defendant for several years, and if defendant was present, Thompson should have known it then. This self-serving and hearsay evidence was incompetent and it will, we think, be conceded that it was prejudicial. State v. English, 67 Mo. 136; State v. Webb, 205 S.W. 187; State v. Powell, 217 S.W. 35; State v. Dunn, 179 Mo. 95, 77 S.W. 848; State v. Lovelace, 39 S.W. (2d) 533. (3) The court erred in permitting the witness S.P. Hunter to testify as to what occurred at defendant's preliminary before the witness, who was a justice of the peace. (4) The court erred in permitting the prosecuting attorney to put on a show before the jury in connection with the effort to get before the jury what Dave Gayman and Roy Hamilton were supposed to testify, if they would testify, and all this after Gayman and Hamilton had refused to testify, and especially the conduct following: (a) In permitting the prosecuting attorney to ask Gayman question after question after Gayman had refused to testify. (b) In permitting the prosecuting attorney to ask Gayman and Hamilton if defendant did not tell them, Gayman and Hamilton, shortly after the robbery, that he, defendant, and others, on September 7, 1933, were out on Ditch No. 6 and got in a shooting scrape with a woman, and that Bill Schaffer who was present at said alleged robbery, would have to leave the State; and in asking said Gayman and Hamilton leading and suggestive (to the jury) questions; and in asking questions in such language and manner to get before the jury what defendant was supposed to have said to Gayman and Hamilton, and what defendant is supposed to have said and done about the pistol. State v. Webb, 254 Mo. 414, 162 S.W. 622; State v. Johnson, 115 Mo. 480, 22 S.W. 463; State v. Lee, 56 Mo. 165; State v. Rose, 92 Mo. 201, 4 S.W. 733; State v. Ripey, 229 Mo. 657, 129 S.W. 646; State v. Evans, 65 Mo. 574; State v. Coleman, 199 Mo. 112, 97 S.W. 574. (5) The court erred in permitting R.L. Ward, associate counsel for the State, on cross-examination of defendant's witness, Dessie Crawford, to ask the witness, and permitting the witness to testify as to what he saw at the Thompson filling station, and as to Mr. and Mrs. Thompson, to indicate that there had been a shooting scrape there. Such evidence did not tend to prove defendant's guilt, but was prejudicial.

Roy McKittrick, Attorney General, and Russell C. Stone, Assistant Attorney General, for respondent.

(1) The court did not err in permitting counsel for the State to ask leading questions of the witnesses Gayman and Hamilton. 70 C.J., sec. 687; State v. Duestrow, 137 Mo. 84; State v. George, 214 Mo. 269; State v. Kinnamon, 285 S.W. 62. (2) Proper for witness on cross-examination to relate what he saw as tending to affect credibility. State v. Nasello, 30 S.W. (2d) 140; Muller v. St. Louis Hospital Assn., 5 Mo. App. 401, affirmed 73 Mo. App. 242. (3) Witness John Hall properly used as a rebuttal witness. State v. Martin, 56 S.W. (2d) 140; State v. Whitsett, 232 Mo. 528; State v. Craft, 253 S.W. 228; State v. Fish, 50 S.W. (2d) 1020; State v. McGee, 83 S.W. (2d) 109.

ELLISON, J.

The appellant was convicted of robbery in the first degree with a pistol in the Circuit Court of Pemiscot County on change of venue from New Madrid County, and his punishment fixed by the jury at ten years' imprisonment in the penitentiary. His motion for new trial contained forty-three assignments of error, which have been reduced to twenty-four in his brief here. They complain that the evidence was insufficient to support the verdict; of the admission of testimony on direct and cross-examination, and in rebuttal; of improper direct and cross-examination; of the giving and refusal of instructions; and of the refusal to grant a new trial because of newly discovered evidence.

The victim of the robbery was Fred Thompson who conducted a store and gasoline filling station on a highway running along the bank or dump of Ditch No. 6 about seven and one-half miles east of Malden in New Madrid County. It is not disputed that the robbery occurred about nine-thirty or ten o'clock the night of September 7, 1933. But the appellant maintains the proof establishing his alibi defense was so strong, and the testimony of the prosecuting witness, Thompson, and his wife identifying him as one of the robbers was so weak and thoroughly impeached, that the verdict ought not to stand.

Thompson's testimony was that three men in a Ford automobile drove up to the filling station just after he had closed for the night, and said they wanted to buy some gasoline. He demurred about selling it but consented when they told him they would buy a tank full. He operated the gasoline pump with one hand and held a flashlight in the other while one of the men, whom he identified at the trial as Schaffer, held the hose nozzle in the tank — which overflowed after taking only two gallons. Thompson put the cap on the tank, and as he did so the appellant, who had been standing with his foot on the running board, and Schaffer threw him to the ground and took a pistol from his pocket. While they struggled his wife came out and beat Schaffer off of him with a shotgun. When he straightened up the appellant shot at him three times. He ran into the house for another shotgun and someone shot at him three times again, one bullet making a superficial wound over his left ear. By the time he had returned to the house door with his gun the robbers had fled and their car was about forty yards down the road.

He identified a pistol produced at the trial as the one taken from him by the robbers. It belonged to a man named Gratis Ellis who had pledged it to him about a month before the robbery for groceries. Mr. Ellis also identified the pistol. In addition to the pistol the robbers got the two gallons of gasoline and his flashlight. Mrs. Thompson was struck and wounded by the robbers. That night the moon was shining but there was no other light at the filling station except his flashlight and an ordinary coal oil lamp back in the middle of the store. The front of the store was ten feet from the gasoline pump.

On cross-examination Thompson said that prior to the robbery he knew Schaffer well enough to recognize him when he saw him, though he did not know his name until sometime afterward; and that he had similarly known the appellant four or five years. But it was proven in behalf of appellant that Thompson talked to some of his neighbors less than an hour after the robbery occurred, and to others within a period of three days, to all of whom he stated he did not know who the robbers were.

Dessie Crawford, Bernie Ellis, Shelby Lockaby and J.A. Whitledge, marshal at the nearby town of Gideon and deputy sheriff, testified that Thompson said he did not know who had robbed him, though he told Whitledge he thought he could identify some of the robbers. To Dessie Crawford he also said one of the robbers was a big man, whom he believed he could identify, and he stated to Lockaby he would like to see the big fellow again. The big man was Schaffer. Also, two other neighbors, Alex Shrowder and Bill McGee, swore that Thompson told them, respectively he thought man named Floyd Acres, who once had worked on his farm, was one of the robbers. On the stand Thompson denied having made these statements. R.C. Wells, a neighboring farmer, testified that on the morning next after the robbery Thompson told him he did not know who the robbers were; that there was one face he would know. On this same morning Thompson reported to Gratis Ellis, that the robbers had taken his (Ellis') pistol and Mr. Ellis testified that when he asked Thompson "if he had any idea about who it was," the latter answered that he did not. "After that," Ellis said on redirect examination, Thompson told him he thought he could identify the robbers if he saw them again, but the witness was not asked what time he referred to by the expression "after that."

About a week after the robbery Thompson called J.A. Whitledge, the marshal and deputy sheriff above mentioned, and had him go with him to a house on his (Thompson's) farm into which a strange old man had moved the day of the robbery. The old man was sick and wouldn't have a doctor or let anyone look at him, and Thompson said he "sorta thought he was the one Mrs. Thompson shot," in the robbery, or that it could be the man. A short time before that, apparently, Thompson had got the witness R.C. Wells to go see the old man, taking a bottle of liniment in the hope that the aged stranger would permit Wells to rub him with it.

Thompson admitted on the stand that he did not disclose to his neighbors and the other witnesses mentioned the fact that he recognized the appellant as one of the robbers at the time of the robbery. His explanation for this was that he "had more sense" than to tell "outsiders." But the further fact was developed that he failed to acquaint the...