State v. Harris

• Decision Date: 12 November 1956
• Docket Number: No. 1,No. 45429,45429,1
• Citation: 295 S.W.2d 94
• Parties: STATE of Missouri, Respondent, v. John William HARRIS, Appellant
• Court: Missouri Supreme Court

Page 94

295 S.W.2d 94

STATE of Missouri, Respondent, v. John William HARRIS, Appellant.

No. 45429.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1956.

Robert A. McIlrath, Flat River, for appellant.

John M. Dalton, Atty. Gen., Harold L. Henry, Asst. Atty. Gen., for respondent.

COIL, Commissioner.

Defendant, John William Harris, was charged with and convicted of burglary and larceny and the jury found that he theretofore had been convicted of a prior felony as charged. His punishment was fixed at 15 years (the maximum total for both burglary and larceny) in the state penitentiary. He has appealed from the ensuing judgment.

He contends on this appeal that the court erred in danying his motion for judgment of acquittal at the close of the state's case. Defendant, subsequent to the trial court's ruling on that motion, adduced evidence in his own behalf and thereby waived any alleged error in the denial of his motion for a judgment of acquittal at the close of the state's case in chief. State v. Roseberry, Mo.App., 283 S.W.2d 652, 654.

Defendant next contends that the court erred in denying his motion for judgment of acquittal at the close of all the evidence. The state's evidence tended to show that at about one o'clock in the morning of September 2, 1954, defendant, accompanied by state's witness Hoize Goodman, broke into a filling station on Highway 67 in St. Francois County and took therefrom 15 to 17 cartons of cigaretts of a value of $25, some chewing gum, and $40 in silver. While the defendant denied that he committed either of the crimes charged and adduced evidence tending to prove that he was at another place at the time of their commission, nevertheless, it is clear that the state's evidence, if substantial, was sufficient to make submissible cases on both burglary and larceny. It is true, as defendant contends, that the state's evidence tending to prove the essential facts was adduced through the testimony of defendant's accomplice, Hozie Goodman, who, at the time of trial, was an inmate at the Algoa Intermediate Reformatory. Defendant's argument is that because Goodman was a self-confessed criminal, and because Goodman 'continuously lied throughout this case,' his testimony was not substantial.

The testimony of Goodman, an accomplice, even if uncorroborated, was sufficient to sustain defendant's convictions of the crimes charged, State v. Bockman, Mo., 251 S.W.2d 607, 608[1-2]; State v. Emrich, Mo., 250 S.W.2d 718, 725, unless that testimony was for some reason so lacking in probative force as not to amount to substantial evidence. State v. Dupepe, Mo., 241 S.W.2d 4, 6, 7. Our review of Goodman's testimony discloses that it was not inherently incredible, was not self-destructive, was not completely impeached by contradictory evidence, and was such that reasonable minds might believe it. Consequently, his testimony constituted substantial evidence, and, in determining its sufficiency, we accept that substantial evidence as true, together with all inferences that may reasonably be drawn therefrom. State v. Dupepe, supra, 241 S.W.2d 7[3-5]. Defendant's contention that the witness 'lied' is based upon the testimony and thus the credibility of other witnesses and upon some claimed inconsistencies in Goodman's testimony. But those questions affected the weight of his testimony and it was for the jury to find whether the witness was telling the truth as to the essential facts.

Defendant's cited cases to the effect that the uncorroborated testimony of an accomplice should be received with great caution by the jury are not applicable. Defendant did not request the court to instruct on the manner in which a jury might view the testimony of an accomplice and, in the absence of such a request, the court was not required to so instruct. State v. Rizor, 351 Mo. 137, 142 [6, 7], 171 S.W.2d 710, 212[7-10].

Defendant next contends that the trial court erred in failing to sustain a defendant's motion to strike and to instruct the jury to disregard one of Goodman's answers during cross-examination. The record shows that on direct examination the witness was interrogated about the movements of an automobile of which he, defendant, and another were occupants subsequent to the alleged burglary and larceny, and it was developed that they had stopped in Ironton. On cross-examination concerning the details of the Ironton stop, Goodman stated that they had stopped at Crocker's house in Ironton but had not stopped for a visit. On redirect the record shows the following:

'Q. When you got to Claude Crocker's house how long were you there? A. I'd say approximately 45 minutes.

'Q. What did you do while you were at Crocker's house? A. Burglarized it.

'By Mr. McIlrath [defendant's counsel]: Now I want to ask that that be stricken and the jury be told to disregard it.

'By the Court: Overruled.'

Defendant now argues that the trial court should have ordered that testimony stricken and that the jury disregard it because it was evidence that defendant was guilty of a separate and distinct crime for which he was not on trial, and that the proof of that separate crime had no tendency to establish defendant's guilt of the offense for which he was on trial.

As appears above defendant made no objection to the question asked. But the objectionable nature of the answer was not apparent from the question asked, and thus the motion to strike the answer was timely. State v. Cain, Mo., 37 S.W.2d 416, 418. It also appears that defendant failed to assign any reason in his motion to strike. Having so failed he preserved nothing for appellate review unless the answer given constituted evidence which was wholly inadmissible for any purpose. If it was wholly inadmissible for any purpose it would seem that a general motion to strike should be sufficient on the same theory that a general objection to wholly inadmissible evidence is sufficient. State v. Medley, 360 Mo. 1032, 1041, 232 S.W.2d 519, 524[3-5]. But the fact alone that relevant evidence tends to prove defendant guilty of a separate crime does not, in the absence of a specific objection on that ground, make the admission of such testimony erroneous. State v. Medley, supra, 232 S.W.2d 525.

It may be conceded that Goodman's answer to the effect that Crocker's house was burglarized when he and defendant stopped there did tend to prove defendant guilty of a crime other than that for which he was on trial. Further, it is apparent that the answer was prejudicial to defendant and we have no doubt that upon a proper specific objection or upon a motion to strike in which the proper reason was assigned the evidence should have been refused or stricken. The question here, however, is whether the witness' answer constituted relevant evidence under any view of the issues in the instant case.

Defendant's counsel during the cross-examination of Goodman clearly indicated by certain of his questions that defendant would rely upon an alibi defense. Counsel asked leading questions attempting to elicit from the witness that defendant had left the company of the witness during the afternoon of September 1 (long prior to the time of the alleged burglary and...