State v. Harris

• Decision Date: 05 November 1935
• Docket Number: No. 34105.,34105.
• Citation: 87 S.W.2d 1026
• Parties: THE STATE v. VIRGIL HARRIS, Appellant.
• Court: Missouri Supreme Court

87 S.W.2d 1026

THE STATE v. VIRGIL HARRIS, Appellant.

No. 34105.

Supreme Court of Missouri.

Division Two, November 5, 1935.

Appeal from Greene Circuit Court. — Hon. John Schmook, Judge.

SENTENCE ORDERED CORRECTED.

O.J. Page for appellant.

The rule of evidence commonly known as "the best evidence rule" one which from early times has been repeatedly enunciated by the courts — is that the highest degree of proof of which the case from its nature is susceptible must if accessible be produced; or in other words that no evidence shall be received which presupposes that the party who offers it can obtain better evidence. If the best evidence possible cannot be produced, then the next best evidence should be admitted. 22 C.J. 974, sec. 1220; Sharp v. Ry. Co., 213 Mo. 517, 111 S.W. 1154; Bent v. Lewis, 88 Mo. 462; Bank of North America v. Crandall, 87 Mo. 208; Pratt v. Ry. Co., 139 Mo. App. 502, 122 S.W. 1125; State v. Sherman, 137 Mo. App. 70, 119 S.W. 319.

Roy McKittrick, Attorney General, and W.W. Barnes, Assistant Attorney General, for respondent.

(1) These assignments are each too general and indefinite to present anything for review by this court. State v. Hohensee, 62 S.W. (2d) 439; State v. Turley, 142 Mo. 410. (2) The scope of rebuttal testimony is largely within trial court's discretion, and trial court in instant case, did not abuse that discretion. State v. Hall, 7 S.W. (2d) 1004; State v. Dollarhide, 63 S.W. (2d) 999; State v. Martin, 56 S.W. (2d) 140; State v. Bunch, 62 S.W. (2d) 439; State v. Williams, 71 S.W. (2d) 735. (3) The instruction in the nature of a demurrer at the close of the case was properly refused by the court. State v. Schaeffer, 273 S.W. 249; State v. Harris, 324 Mo. 232; State v. Hanke, 313 Mo. 626. (4) The information is sufficient in form and substance. State v. Craft, 299 Mo. 341. (5) The verdict is definite and certain, and the punishment within the range of the statute. State v. Gibson, 300 S.W. 1107.

COOLEY, C.

By information filed in the Circuit Court of Greene County defendant was charged with robbery in the first degree committed by means of a deadly weapon, to-wit, a pistol. Upon trial he was convicted and his punishment was assessed by the jury at ten years' imprisonment in the penitentiary. The court, applying the provisions of Section 4428, Revised Statutes 1929 (Mo. Stat. Ann., p. 3043), sentenced him to twelve years' imprisonment — "Ten years assessed by jury and two years additional as levied by the judge." Defendant has appealed.

The State's evidence tends to prove that the Bank of Republic, in the town of Republic, Greene County, was robbed by four men on March 7, 1932. Three of the robbers entered the bank and, with drawn pistols which they exhibited and threatened to use, compelled the employees in the bank to deliver to them $1280 in money, a $50 Liberty bond and some travelers' checks. The fact of the robbery and that it was committed by means of deadly weapons is not disputed. Defendant was identified at the trial by several witnesses as one of the three men who had entered the bank and actively participated in the robbery.

The defense was an alibi. Defendant did not himself take the witness stand but introduced the testimony of several witnesses tending to show that he was not in Republic, Missouri, on the day of the robbery but was in Cedar Rapids, Iowa, that day and on every day from about December 31, 1931, to about March 24, 1932. In rebuttal a witness for the State testified that he recognized defendant as a man he had seen in Republic, but outside the bank, on the day of the robbery an hour or so before that occurrence. Three witnesses for the State testified in rebuttal that they saw and conversed with defendant on February 26th, eight or nine days before the robbery, at a point three or four miles from Republic and that he was inquiring about certain roads.

This appeal is from the second trial of this cause. On his first trial defendant was convicted, sentenced to fifty years' imprisonment, and on his appeal, the judgment was reversed and the cause was remanded by this court because the trial court had excluded certain evidence offered by the defendant which we held should have been admitted. [See State v. Harris, 334 Mo. 38, 64 S.W. (2d) 256.] On the second trial that evidence was admitted. Otherwise the State's evidence in chief and the defendant's alibi evidence in the two trials was similar. For further details as to the facts reference is made to State v. Harris, supra.

I. Appellant contends that the testimony of the three rebuttal witnesses — Manes, Sanders and Robertson — who testified to having seen and talked with him in Greene County a few miles from Republic on February 26th, was incompetent and that its admission was reversible error. He had objected to its introduction at the trial and had moved to strike it out on the somewhat general ground that it was not relevant to any issue in the case and had no connection with the case.

We have mentioned that defendant, in support of his alibi, offered evidence to the effect that he was in Cedar Rapids, Iowa, not only on the day of the robbery but continuously for over two months next prior thereto; that he had not during all that time and for some two weeks after the robbery been out of Cedar Rapids. In view of that evidence we think the testimony of the three witnesses above named, showing that defendant had been in Greene County, Missouri, in the vicinity of Republic on February 26th, was competent. It is needless to consider whether or not it would have been competent otherwise.

II. When the State closed its rebuttal testimony defendant called one Jerry Strausser who testified that in February and March, 1932, he was assistant foreman in the feed department of the Penick & Ford Starch Works at Cedar Rapids, Iowa, and that defendant worked there under him from February 25 to March 3 or 4, 1932. He was then asked if defendant was on the pay roll. The court sustained the State's objection based on the ground that the pay roll of the company would be the best evidence, the witness having stated that the pay roll was in existence in the company's "plant." Defendant made no offer of proof. In his brief here he complains of the court's refusal to permit Strausser to testify that between the dates mentioned defendant was on the company's pay roll. This complaint cannot be considered because not preserved in or presented by defendant's motion for new trial. The only allegation in that motion relative to the exclusion of evidence is, "Because the court erred in excluding relevant, competent and material evidence offered on the part of the defendant." Such general and indefinite assignment in the motion for new trial is insufficient under the statute and presents nothing for review. [State v. Bunch, 333 Mo. 20, 62 S.W. (2d) 439.]

III. Appellant contends that the court should have granted his request for a directed verdict in his favor. This contention proceeds upon the theory that the rebuttal testimony of Manes, Sanders and Robertson should have been excluded and that without such testimony in the case his alibi evidence was so strong and convincing as to be conclusive. We have held that the testimony of said three witnesses is properly in the case. Furthermore the jurors were the triers of the facts and it was their province to determine the credibility of the witnesses. Defendant was identified by several witnesses as one of the participants in the robbery. Another unimpeached witness testified to seeing him in Republic on the day of the robbery. On the question of identification the evidence is more positive and clear than was the case in State v. Blackmore, 327 Mo. 708, 38 S.W. (2d) 32, wherein we reviewed authorities and held the evidence sufficient to make the question one for the jury. On the question of alibi, while defendant did produce strong evidence by some eight or ten witnesses to the effect that he was in Cedar Rapids, Iowa, on the day of the robbery and could not have been at Republic, Missouri, the evidence as a whole on that question is less strong and persuasive, we think, than in State v. Scobee 331 Mo. 217, 53 S.W. (2d) 245, where a similar contention was made. In that case — a robbery case — the evidence in support of the defendants' alibi was reviewed and this court, while conceding that said evidence was impressive, affirmed the conviction. As said in that case it is the familiar rule that in criminal cases this court will not and cannot pass on the weight of the evidence even though it might appear the preponderance was with the defendant. In the case before us there can be no doubt that the State produced substantial evidence of defendant's presence at and participation in the robbery. The court properly refused to direct a verdict of not guilty.

IV. A more troublesome question is whether or not the court had authority to assess two years' imprisonment in addition to the ten years assessed by the jury.

The information, omitting formal parts, charges that defendant "did then and there willfully, unlawfully and feloniously make an assault in and upon one W.P. Anderson, the agent in charge of the Bank of Republic, a corporation, by means and by use of a dangerous and deadly weapon, to-wit, a revolving pistol, and $1248.00, good and lawful money of the United States, of the value of $1248.00, and $670.00 in American Express Travelers checks, of the value of $670.00, and one $50.00 Fourth Liberty Loan Bond, of the value of $50.00; all of the total value of $1968.00, and the personal property of the Bank of Republic, a corporation, and in the possession of W.P. Anderson, from the person and in the presence and against the will of the said W.P. Anderson, then and there by means of and by the use of the dangerous and deadly weapon, to-wit, a revolving pistol, and by putting the said W.P. Anderson in fear of some immediate injury to his person, feloniously did rob,...