HIGBEE, C.
On January 2, 1925, an information was filed in the circuit court of Jasper county, charging the defendant with the crime of robbery in the first degree. The case was tried on January 26, 1926, and the jury found the defendant guilty as charged in the information and assessed his punishment at imprisonment in the penitentiary for a term of six years. Sentence was pronounced accordingly, and the defendant appealed.
Claude Allen, the prosecuting witness, testified:
"I kept a filling station at Central City, in Jasper county, a few miles west of Joplin. On Saturday night, December 12, 1925, about 10:30, I saw two fellows pass the station in a Ford roadster. They came into the station and the defendant drew a gun on me and ordered me to put up my hands. The other fellow asked where the money was and I told him it was in the cash register. This other fellow took about $14 out of the drawer of the cash register and went out; it was my money. The defendant, Glenn Harmon, had his gun on me all the time. He then searched my pockets and backed out of the door and the two drove off. The following Tuesday I saw the defendant in another Ford roadster in Joplin, at Eighth and Main. It stopped at a stop sign and I took the number of the licese on the car. I reported the robbery to the chief of police, and a day or two later was called to the police station and identified the defendant as the man who had robbed me. This robbery took place in Jasper county, Mo., and the defendant is the man that robbed me and the man I identified at the police station."
Cross-examination:
"The two men drove west toward Galena. I got a look at the other man that was with Harmon, but not as much as I did at Harmon. I am absolutely positive this man is one of them. The next time I saw him was on the following Tuesday; it was here at Eighth and Main; he was driving a Ford roadster with the top down and a small bed on the back; it was a different car and I took the number of the license; it was in the afternoon. The robbery was in the night about 10:30. I was in the police station at a quarter after 11 and it hadn't been over 45 minutes. I reported it at a quarter after 11, because I looked at my watch at the police station. I closed up immediately and came to town; . drove my car to town. I did not drive faster than usual. I never did time myself in driving from my station out there. It wouldn't take much longer than 10 or 15 minutes. I am positive the robbery was between 10:30 and 11. I had a five year old boy at the station and he was asleep through the robbery; there was no one else there. The place was well lighted. The defendant wore no mask. He had on a cap something like the one I wear, hanging there on the chair. He had a light top coat of some kind. I couldn't tell whether it was a rain coat or not, but it was a long coat that struck him somewhere about there (indicating)."
J. P. Laster, chief of police, testified that he was at the police station when Allen identified the defendant. This was the evidence for the state.
The defense was an alibi. Dr. Charles A. Morseman, a dentist, having an office in Joplin, testified:
"I live at Saginaw, six miles southeast of Joplin, where I have a dance pavilion; have a deputy constable's commission; I have known defendant two years. I saw the defendant at my pavilion at about 10:30 p. m. on Saturday, December 12, 1925, and talked with him outside till about 11 p. m. during the intermission of the dance when the musicians stop for 10 or 15 minutes to rest. Harmon left, saying he would go home, which was about 100 yards north. He lives with his father in a two-story building in which he (the defendant's father) has a country store in the front part. His father is postmaster and lives in the building."
On cross-examination the witness said he had a friendly interest in the defendant; that he was his sponsor.
"Q. What do you mean by sponsor?
"Mr. Mooneyham (attorney for defendant): Just a moment. (Inaudible conversation with the court by counsel for defendant and the prosecuting attorney.)
"Q. You say you are sponsor for him at the present time and that is your interest in him?
A. Yes, sir."
On objection this evidence was stricken out and the jury instructed to disregard it. The witness further testified:
"There were about 200 present at the dance; that he hadn't seen defendant at his preliminary hearing; and that no one was present during his talk with the defendant at the pavilion.
"Q. What did you talk about?
"Mr. Mooneyham: I object to that; it is improper; it isn't a test of his memory.
"The Court: I think it is proper to test his memory.
"Mr. Mooneyham: Now, I made a statement to the court a minute ago. It is based on my statement to the court.
"Mr. Coyne (prosecuting attorney): If they were talking about that particular thing, I don't want to bring it out. I didn't have any idea what they were talking about.
"The Court: Of course, under the objection of counsel about some matter that might or might not be prejudicial, I do not think it would be proper to go into that.
"Mr. Coyne: I simply want to test him.
"The Court: I know; but you know what counsel for defendant told the court.
"Mr. Coyne: If that is true, I don't want to go into it
"The Court: I am going to sustain the objection. I am satisfied that is what you are trying to get at; that is, it might lead to that.
"Mr. Coyne: I haven't any idea what they were talking about.
"The Court: It might lead to that.
"The witness: I talked to the defendant there about half an hour. I saw others there that night. I learned the station had been robbed, and that Harmon was in jail, and that called
my attention that Glenn was at home that night.
I was interested in this.
"Q. Why could you have been interested in this when he wasn't arrested until the next Thursday?
"Mr. Mooneyham: I object to that. The court well knows—I think the prosecuting attorney ought to be reprimanded. This man's liberty is at stake.
"The Court: Yes.
"Mr. Mooneyham: It is no joke.
"The Court: No; it is a matter you have been cautioned about.
"Mr. Coyne: I don't see as that has anything to do with what we have been talking about "The Court: Well, it brings out the very thing we have been talking about.
"Mr. Coyne: To show my good faith I Win withdraw the question.
"Mr. Mooneyham: We thank you for once showing good faith."
Claude Warren, who lives at Saginaw, testified that he saw the defendant at the dance on the night of the robbery at 10 o'clock and spoke to him; saw Morseman talking to the defendant during intermission. It was a week after that night that he heard of the defendant's arrest.
Guy Williams testified he saw the defendant at Morseman's dance pavilion about 10:30 on the night of the robbery, and saw him talking to Dr. Morseman and Claude Warren.
Miss Louise Graff and Emmett Hensley testified they danced together at the pavilion on the night of December 12, and that they saw the defendant, but did not remember whether it was before or after intermission.
Richard D. Harmon and his wife, defendant's father and mother, testified their son lived with them and was in the store until about 10 p. m. on the night of December 12, when he said he wanted to see Dr. Morseman and went out and returned about 11 p. m. The mother suggested it was 10 o'clock or later and that he should not go, but the defendant said he must see Dr. Morseman.
Louis G. Purviance, constable, testified that he had been at a dance near Spring City, in Newton county, on the evening of December 12; that be left there about 10:30 and drove to Saginaw, a distance of five or six miles, arriving there about 11 o'clock; that he met Glenn Harmon at Morseman's dance hall; and that Harmon said he was going home and started off in that direction.
The court gave four instructions for the state. They properly submitted the case and covered the subjects of the presumption of innocence, reasonable doubt, alibi, and that the jurors were the sole judges of the credibility of the witnesses and of the weight to be given to the testimony of each witness.
During the opening argument to the jury, Mr. Farlow, assistant prosecuting attorney, said:
"This trial has been rather funny to this defendant; the looks he has given the prosecuting witness, the snarling looks. * * *
"Mr. Mooneyham: Object to the argument of something not in evidence. (This was overruled and an exception saved.)"
During the closing argument the prosecuting attorney said:
"You saw what I was trying to prove and Mr. Mooneyham stopped me.
"Mr. Mooneyham: Object to that statement. "The Court: Yes; that is a prejudicial statement; it was ruled out and you ought not to mention anything ruled out."
The motion for new trial assigns errors as follows:
(1) In admitting evidence on the part of the state.
(2) In excluding evidence offered by the defendant.
(3) In giving instructions 1, 2, 3, and 4.
(4) In failing to instruct on all the law of the case.
(5) In permitting the prosecuting attorney to ask prejudicial questions.
(6) After the court ruled that the prosecuting attorney should not ask questions concerning a former conviction of the defendant, he persisted in asking questions of the witnesses relating to such former convictions and compelled defendant to object to same, all of...
