State v. Hall

• Decision Date: 25 May 1928
• Docket Number: No. 28738.,28738.
• Citation: 7 S.W.2d 1001
• Parties: STATE v. HALL.
• Court: Missouri Supreme Court

7 S.W.2d 1001

STATE v. HALL.

No. 28738.

Supreme Court of Missouri, Division No. 2.

May 25, 1928.

Motion for Rehearing Denied June 21, 1928.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

Joe Hall was convicted of robbery, and he appeals. Reversed and remanded.

Alexander & Coffer, of Cape Girardeau, for appellant.

North T. Gentry, Atty. Gen., and Hibberd C. Whitehill, of Jefferson City, for the State.

DAVIS, C.

The grand jury of Cape Girardeau county, on May 13, 1926, indicted defendant for robbery in the first degree. The jury, on the trial, returned a verdict assessing the punishment at five years' imprisonment in the penitentiary, recommending, however, a parole. The court, finding that defendant was 19 years of age and that it was his first offense, ordered that his punishment be reduced from 5 to 3 years, and that he be confined in the Missouri Training School for Boys. The defendant appealed.

The facts adduced on the part of the state warrant the finding that defendant and the prosecuting witness Umbeck lived in the city of Cape Girardeau. Umbeck ran a pool room which defendant had been in the habit of frequenting. On the evening of April ______, 1926, defendant was there present until 9:30 or 10 o'clock. Across the street Umbeck had parked his Ford touring car, with the back curtains affixed. About a quarter of 11, Umbeck, starting for home, boarded the touring car without observing any one in it. When he had driven the car down Broadway as far as Main street, he heard some one say, "Stop your car." Umbeck looked around, but saw no one. He then looked to the rear and saw a man in the back seat with a white sheet over his face. Upon inquiring, "Now, what do you want?" the man replied: "Give me your money. Don't give me no gun." He gave the man his pocketbook, containing $8; the man demanding also the small change. He gave him a portion of that which he had in his pocket. Umbeck did not know whether defendant had a knife, gun, club, or other weapon, for he did not see anything of that nature. He delivered to him because he was afraid he might be laid out, as he was not taking any chances. Just before he alighted from the car, the man said, "Unbutton this back curtain and leave me out, and you can go back home or I will shoot you." Umbeck said he knew defendant's voice, identifying him solely by that fact. He knew his voice on the first word spoken. He telephoned the police station that night, but was unable to get in communication with it. He reported the robbery the next morning. On cross-examination Umbeck denied possessing whisky or giving defendant any, and denied leading defendant to the car. He said the night was dark and drizzling rain. He stated that defendant threw away the pocketbook containing the money.

The captain of police of Cape Girardeau, after the accusation of Umbeck, sent for defendant, who stated that he (defendant) was in the car with Umbeck when he got this money and that he had the largest part of it. Defendant then took from his shoe a five and three one-dollar bills and handed them to the captain. Upon being asked what he did with the pocketbook, defendant said it was old and worn-out and that he had thrown it away. The captain detailed Officer Kaiser to accompany defendant to search for the pocketbook.

Kaiser testified he went with defendant to look for the pocketbook, defendant finding it on the west side of Main street. He told defendant he ought to have more successfully disguised his voice, defendant replying:

"I ought to have known better than anything like that; I might have known I could not get by with it."

Neither the captain of police nor Kaiser nor Umbeck remembered the date of the occurrences, except that they happened in April, 1926.

Defendant's evidence tended to show by several witnesses that Umbeck possessed whisky in the pool room, that he gave some of it that evening to defendant, and that they were both drunk. A Mr. Fulbright, employed by the State Teachers' College, which defendant was attending, stated that on Thursday, April 22, 1926, between 10:30 and 11 o'clock at night, he saw Umbeck and defendant wobbling and reeling across the street from the pool room, as though they were drunk. He steered his car to avoid striking them. A Ford car was standing on the west side of the street. Buckner testified that on April 22, 1926, between 11 and 12 o'clock, while driving, he took defendant, who was intoxicated, to Main and Broadway. A Ford car was parked near by with the engine running, and with a man in it whom he did not know, but defendant said he was returning for Umbeck. The man in the Ford said nothing about being robbed, although witness did not talk to him.

Defendant testified that, while in the pool room, Umbeck gave him whisky, and that Umbeck took him to his (Umbeck's) car, helping defendant in and crawling over to the driver's position in the front seat. Driving down Broadway and out Main street, they drank the whisky left in the bottle. Then Umbeck inquired as to the amount of money he had. Upon replying that he had $12, he handed his pocketbook to Umbeck. Thereupon Umbeck put his money in defendant's pocketbook and threw his pocketbook away. Defendant owed Umbeck $8 or $9 on a pool room debt. After driving around, defendant asked Umbeck if he was going to keep all the money. Umbeck returned him $7 minus his pocketbook. Defendant then drove with Buckner to Broadway and Main, where he waited for Umbeck. Defendant's father had given him $12 to pay for clothes. He put the $7 returned to him by Umbeck in his shoe to keep his father from ascertaining that he had not paid for them. He denied robbing Umbeck or taking money from him. Defendant stated he told the captain he had the money Umbeck gave him, but he did not rob him, whereupon the captain said, "You will have to prove it," and defendant replied: "Yes, sir, I will have to prove it."

Defendant denied that he had a covering over his face, denied that he had a weapon, and denied that he was in the back seat of the car, as mentioned by Umbeck. He admitted that he searched for and found the pocketbook the next morning. On cross-examination he stated that he was more sick than drunk. He was at the pool room, leaving about 10 o'clock and getting into Umbeck's car, going down Main street. He got $7 from Umbeck and left him and returned. He admitted that he turned $7 over to the captain, taking the money from his shoe. On redirect examination, he stated that the $7 he received from Umbeck belonged to him, and that it was money Umbeck had obtained from defendant to buy whisky. He had $12 in the first place when he handed the pocketbook to Umbeck, receiving $7 in return, Umbeck keeping $5.

Defendant's father testified that he gave him $12.65 on April 22, 1926, to make purchases and pay a bill. On the morning after the occurrence, defendant's father went with him to the place where defendant said that Umbeck had thrown the empty whisky bottle from which they drank, finding it.

In rebuttal the captain said that defendant said nothing about getting money from his father, or any other person, the day before. Defendant said, however, that he was in the car behind Umbeck, holding Umbeck up and getting the money. Other pertinent facts, if any, will be later noted.

I. Defendant asserts that the record is without substantial evidence of robbery, because no assault, violence, or fear was shown, resulting that the offered instructions to acquit defendant should have been given at the close of the state's case and the whole case. We are unable to agree to defendant's contention in that regard, for, even though we could say the evidence for the prosecution is against the weight of the evidence, the relation of facts, even deleting the captain's testimony in rebuttal, was not impossible or so improbable as to compel us to cast it aside. The testimony for the state, if believed, unequivocally points to defendant's guilt. Umbeck stated that he had no whisky thereabout. He stated, upon leaving the pool room, he proceeded to his car, driving some distance, when defendant, hidden in the rear of the car, demanded his money, accentuating the demand by prodding him in the back. The facts and circumstances in evidence comprised an assault, thus involving violence, and, we may infer, was intended and did induce fear. Moreover, the presence of fear will be inferred from the facts related. These facts made a submissible case. State v. Craft, 299 Mo. 332, 253 S. W. 224. A competent indentification of a defendant in a criminal case may result from the recognition of the voice. State v. Bell (Mo. Sup.) 300 S. W. 504.

II. It is complained that the court erred in permitting the police captain to testify in rebuttal that defendant said he was in the car behind Umbeck, holding him up and getting the money, because it was not properly in rebuttal. Section 4025, Revised Statutes 1919, provides in part:

"The parties may then respectively offer rebutting testimony only, unless the court, for good reason in furtherance of justice, permit them to offer evidence upon their original case."

It is a well-settled rule of law that, if the evidence is otherwise competent and material, permitting the state to offer evidence that should have been offered originally, after the defendant has rested his case, is within the discretion of the trial court, unless an abuse of discretion appears. As such abuse does not appear, error is not shown. State v. Farrar (Mo. Sup.) 285 S. W. 1000.

III. Defendant claims error because the court refused an instruction offered by him. It proceeds upon the theory that, if Umbeck was possessed of money belonging to defendant and defendant took it from him to obtain payment or return of amount due him or any part thereof, defendant is not guilty of robbery. The vice in this instruction is that it is not based on the evidence. The state's evidence was wholly directed to showing...