State v. Harris

• Decision Date: 28 October 1933
• Docket Number: No. 32839.,32839.
• Parties: THE STATE v. VIRGIL HARRIS, Appellant.
• Court: Missouri Supreme Court

64 S.W.2d 256

THE STATE v. VIRGIL HARRIS, Appellant.

No. 32839.

Supreme Court of Missouri, Division 2.

October 28, 1933.

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

REVERSED AND REMANDED.

O.J. Page for appellant.

(1) A "rule of evidence" may be defined to be the mode and manner of proving the competent facts and circumstances upon which a party relies to establish the fact in dispute in judicial procedure. 22 C.J. 65, sec. 4. (2) Evidence is "relevant" when it touches upon the issues which the parties have made by their pleadings, so as to assist in getting at the truth of the fact disputed. 22 C.J. 65, sec. 5, with note to ref. 9-(a); Id., p. 156, sec. 89-1; Id., p. 162, sec. 90-2; Id., p. 164; sec. 91-(3); Id., p. 165, sec. 92 (4); Id., p. 167, sec. 93-(5). (3) Evidence is "material" when it is relevant and goes to the substantial matters in dispute or has a legitimate and effective influence or bearing on the decision of the case. 22 C.J. 65, sec. 6; State v. Tate, 156 Mo. 119; State v. Dickson, 78 Mo. 438; State v. Hillman, 142 Mo. App. 510. (4) By "competent" evidence is meant that which the very nature of the thing to be proved requires as the fit and appropriate proof in the particular case. 22 C.J. 65, sec. 7; Id., p. 192, sec. 157-a; Greenleaf on Ev., sec. 2. (5) "Corroborative" evidence is additional evidence tending to prove similar facts or fact tending to produce the same result as facts already given in evidence. 23 C.J. 9, sec. 1737; Underhill on Ev., sec. 2; 22 C.J. 209, sec. 168. (6) "Cumulative" evidence is additional evidence of the same kind tending to prove the same point as other evidence already given. Evidence of other and different circumstances tending to establish or disprove the same fact is not cumulative, nor is evidence of facts tending to prove circumstantially the existence of a fact cumulative to evidence which tends to establish the same fact directly. 23 C.J. 10, sec. 1739; St. Joseph Folding Bed Co. v. Railroad Co., 148 Mo. 478. (7) When the declarations of an interested party are the narration or explanation of a past event, they are merely "self-serving declarations" inadmissible because subject to the influence of such party interest and made without opportunity for those whom they affect to defend themselves. It is a well-established general rule that a statement by a party, whether oral or written which is "self-serving" in its nature is not admissible in evidence in his favor, while such statements are usually made because the declarant is from some reason, interested at the time in having the fact supposed or believed to be as stated by him, the element of time is not essential for it has been considered that the rule applies with full force notwithstanding the fact that the declarant was disinterested at the time when the statement was made. And the rule of exclusion also applies when such declarations are offered in evidence by third persons in their own behalf. 22 C.J., pp. 220-226; Vermillion v. Parsons, 107 Mo. App. 192; Culberson v. Malson, 11 Mo. 492; Milne v. Railroad Co., 155 Mo. App. 465; 7 Words and Phrases (1st Series), p. 6406; 6 Words and Phrases (3rd Series), p. 1012. (8) The date of a transaction may and should be fixed by associating it with other circumstances of public and unquestioned notoriety, or with credible written documents, or with facts occurring at the time clearly proved. 23 C.J. 37, sec. 1777; Retter v. First Natl. Bank, 30 Mo. App. 652; Estes v. Fry, 23 Mo. App. 53. (9) Oral testimony depending on the memory of witness is not as reliable as written or documentary evidence, and a party seeking to establish a fact in opposition to written evidence must make out his case with more than usual clearness. 23 C.J., sec. 1782, p. 39; Davis v. Green, 102 Mo. 170. (10) A contemporaneous memorandum made by witness may not only serve to refresh his memory, but may enhance the value of his testimony. 23 C.J. 31, sec. 1769. (11) Under facts of the particular case, courts have argued in favor of fewer number of witnesses as follows: that they are corroborated by documentary evidence. 23 C.J. 24, sec. 1758; State v. Weinberger, 87 N.J.L. 422, 94 Atl. 795; Wilson v. Anderson, 37 S.W. 1100. (12) In view of the plain wording of the statute forbidding them, questions asked defendant in cross-examination upon matters neither touched upon nor growing out of his examination in chief are presumed to be prejudicial error unless the contrary appear. Sec. 3692, R.S. 1929; State v. Pfeifer, 267 Mo. 23; State v. Hathhorne, 166 Mo. 229; State v. McDonough, 232 Mo. 219.

Roy McKittrick, Attorney-General, Frank W. Hayes, Assistant Attorney-General, for respondent.

(1) The court did not err in excluding from the jury exhibits A, B, C and D offered by the defendant. Littig v. Urbauer-Atwood Heating Co., 237 S.W. 785; State v. Renard, 273 S.W. 1057; State v. Tarwater, 239 S.W. 480; 22 C.J., sec. 1091, p. 895. (2) The court did not err in permitting Mrs. Grace King to testify in rebuttal without having her name endorsed upon the information. State v. Jennings, 34 S.W. (2d) 50; State v. Cain, 37 S.W. (2d) 416. (3) The court did not err in permitting the prosecuting attorney, upon cross-examination, to inquire of defendant as to conversations had with or confessions made to Carboruski in Lincoln, Nebraska, regarding said express checks in possession of defendant. Sec. 3692, R.S. 1929; State v. Barnes, 29 S.W. (2d) 156; State v. Albritton, 40 S.W. (2d) 676; State v. Hawley, 51 S.W. (2d) 78; State v. Ivy, 192 S.W. 733. (4) Under Section 4061, R.S. 1929, robbery by means of a dangerous and deadly weapon is robbery in the first degree and is punishable by imprisonment in the penitentiary for not less than ten years.

TIPTON, J.

The appellant was charged, under Section 4061, Revised Statutes 1929, with the crime of robbery in the first degree by means of a dangerous and deadly weapon. The trial was begun on the 3rd day of June, 1932, in the Circuit Court of Greene County, Missouri, and resulted in a verdict of guilty and a sentence of fifty years' imprisonment in the State penitentiary. Appellant duly appealed this case to this court.

The Bank of Republic was a corporation engaged in the general banking business in the Town of Republic, Missouri. On March 7, 1932, this bank was robbed by three robbers entering the bank and the fourth staying in an automobile parked in an alley in the back of the bank. The appellant was identified by Miss Brittain, an employee and an agent in the bank, and by several customers who were in the bank during the robbery. The defense was an alibi. Appellant testified that he was not in Republic, Missouri, on the 7th day of March, but was in Cedar Rapids, Iowa, on that day and several days prior thereto. He was corroborated by seven witnesses.

[1] I. The appellant assigns as error the refusal of the trial court to admit certain documentary evidence, which tended to support his defense of an alibi. The appellant offered the testimony of Benjamin Heck by deposition and was permitted by the trial court to read a part of the deposition which in substance told the jury that Heck was a resident of Cedar Rapids, Iowa; that he was engaged in the business of operating a radio repair shop in that city; that he became acquainted with the appellant in January of 1932, when he repaired the appellant's radio; that on March 6, 1932, the witness brought appellant's radio to his shop for repairs, but did no work on it until the next day, that is March 7, 1932, the day of the robbery; that on that day the appellant was in his radio shop twice and that he also talked to him over the telephone once; that the appellant in person paid him that day for the repairing of the radio including the work that he had done for appellant in January of that year; and that he gave appellant a receipt for the amount paid, which receipt was dated March 7, 1932.

The appellant offered in evidence the receipt which was marked "Exhibit C," and the carbon copy of it which was marked "Exhibit D." The appellant, also, offered in evidence Exhibit A, which was the page of the book account between the witness Heck and the appellant. An offer was made showing that the book account was kept in the regular course of business. Exhibit B was a carbon copy of Exhibit A. (There is no contention on the part of the State that the book account was not kept in the regular course of business or that it was not properly identified.)

In State v. Wagner, 311 Mo. 391, 279 S.W. 23, l.c. 27, the defendant was charged with the theft of an automobile. It was the State's contention that the engine number, the body number and the generator number had been changed. The State offered in evidence certain book accounts tending to prove its theory of the case. These accounts were shown to be kept in the ordinary course of the business by the Cadillac Motor Company. In an opinion by BLAIR, J., we said:

"Said exhibits appear to be fair and regular on their faces, and were properly and sufficiently identified as having been made and kept in the regular and orderly course of business, and made at the time of the filling of the order, and were admissible in evidence. [Anchor Milling Co. v. Walsh, 108 Mo. 277, l.c. 285, 18 S.W. 904, 32 Am. St. Rep. 600; Robinson v. Smith, 111 Mo. 205, l.c. 207, 20 S.W. 29, 33 Am. St. Rep. 510; Lyons v. Corder, 253 Mo. 539, l.c. 548, 162 S.W. 606; Dameron v. Harris, 281 Mo. 247, l.c. 265, 219 S.W. 954.] Such is the rule, even where such records are offered in his own behalf by a party to the suit. For a still stronger reason such records should be regarded as legal and competent evidence when kept and produced by a wholly disinterested person."

In Leech v. State (Tex.), 189 S.W. 733, the defendant was convicted of riding upon a railroad pass issued to a person other than the defendant. His defense was an alibi. He offered in evidence the Sunday School book...