State v. Hart

• Decision Date: 14 December 1932
• Docket Number: No. 32331.,32331.
• Citation: 56 S.W.2d 592
• Parties: THE STATE v. PETE HART, JESS GARNER and FRED GARNER, Appellants.
• Court: Missouri Supreme Court

56 S.W.2d 592

THE STATE v. PETE HART, JESS GARNER and FRED GARNER, Appellants.

No. 32331.

Supreme Court of Missouri, Division 2.

December 14, 1932.

Appeal from Texas Circuit Court. — Hon. J.H. Bowron, Judge.

AFFIRMED.

Hiett, Covert & Cunningham, W. II. Robinett and L.E. Newton, for appellant.

(1) The court has held that the fact that a jury was impaneled was not evidence that a jury had been sworn to try the case and the fact that a jury had been sworn to try the case could only be shown by the record proper. State v. Dunnegan, 258 Mo. 376; State v. Delaney, 250 Mo. 409; State v. McKinney, 221 Mo. 467; State v. Mitchell, 199 Mo. 105; State v. Barr, 34 S.W. (2d) 477. (2) Section 3681, Revised Statutes 1929, is as mandatory that a jury should be impaneled as it is that a jury should be sworn. If the fact that a jury had been sworn can only be shown by the record proper, then the fact that a jury had been impaneled can only be shown by the record proper. State v. Temple, 194 Mo. 237; State v. Schoenwald, 31 Mo. 147; State v. Hurst, 123 Mo. App. 39; State v. Taylor, 256 S.W. 1059; State v. Duncan, 237 Mo. 195. (3) Impaneling a jury is an entirely distinct procedure from swearing a jury to try the case. Impaneling a jury includes every act ascertaining the members of the jury which are qualified to be sworn to try the case. Impaneling a jury is entirely finished before the jury is sworn to try the case. State v. Hurst, 123 Mo. App. 399; State v. Dunnegan, 258 Mo. 376; State v. Delaney, 250 Mo. 409; State v. McKinney, 221 Mo. 467; State v. Mitchell, 199 Mo. 105. (4) In a criminal case each and every member of the list, in this case thirty, must be found by the court to be qualified to try the case. Sec. 3676, R.S. 1929. (5) In every criminal case the statute requires the court to find a number of jurors to be qualified to be sworn to try the case equal to the number of peremptory challenges plus twelve additional. Secs. 3676, 3677, R.S. 1929. (6) All issues of fact in any criminal case shall be tried by a jury to be selected, summoned and returned in the manner prescribed by law. Sec. 3662, R.S. 1929. (7) An error in the record proper can be raised at any time in the appellate court. It is such an error as the court will take notice of on its own motion. State v. McKinney, 221 Mo. 467; State v. Barr, 34 S.W. (2d) 477. (8) The court erred in giving Instruction 4 for the State for the reason that said instruction merely informs the jury that they are the judges of the credibility of the witnesses and does not inform the jury what they should consider in determining such credibility. The testimony in this case is in sharp conflict. State v. Cavaness, 33 S.W. (2d) 941; State v. Parmenter, 213 S.W. 439; State v. Adair, 160 Mo. 591; State v. Boone, 289 S.W. 578. (9) The testimony in this case is in sharp conflict. The testimony of the prosecuting witness as to the identity of the defendants is not corroborated by any fact or circumstance. The prosecuting witness at the preliminary examination could not describe the defendants that a few days after the robbery he could not give the sheriff any definite description of the persons who robbed him. The prosecuting witness admitted that the defendants were taken before him one at a time and questioned and that at the time the defendants were taken before him he knew that they were under arrest charged with having robbed him. The testimony of the prosecuting witness is wholly insufficient to identify the defendants as the persons who robbed him. State v. Albritton, 40 S.W. (2d) 676; State v. Marshall, 34 S.W. (2d) 29; State v. Dickhout, 26 S.W. (2d) 937; State v. Hahn, 289 S.W. 845; State v. Higgins, 278 S.W. 977; State v. Allison, 300 S.W. 1069.

Stratton Shartel, Attorney-General, and Denton Dunn, Assistant Attorney-General, for respondent.

(1) The record proper shows that the jury of twelve good and lawful men were summoned from the body of the county, and duly sworn to try the cause, all of which suffices without using the word "impaneled," as that is necessarily implied from "summoned and sworn," and any objection to the selection thereof must be timely made and exception saved thereon, as the acceptance thereof without challenge is a waiver of all possible error in the procedure thereon. 16 C.J. 1256, sec. 2786; Samuel v. State, 3 Mo. 68; State v. Kellar, 281 S.W. 962; State v. Ward, 74 Mo. 256; State v. Perno, 23 S.W. (2d) 87. (2) Instruction 4, given by the court as to the credibility of witnesses being for the jury is sound law, and if not elaborate enough to suit defendants, they should have asked for a more elaborate one, as such instructions are of a collateral nature and discretionary with the court unlike those defining the essential elements of the crime, which are required. State v. Lewis, 20 S.W. (2d) 529; State v. Miller, 292 S.W. 440; State v. Headley, 18 S.W. (2d) 37. (3) Defendants' contention that there was no substantial evidence to support the verdict seems to be based on the novel theory that more than one witness, having had opportunity to identify the defendants as the robbers, must testify to the identity of the latter. There never has been any such law, and their contention is addressed solely to the weight of the evidence, which was for the jury and trial judge and cannot be considered by this court. State v. Scobee and Manning, 53 S.W. (2d) 245; State v. Franke, 159 Mo. 542; State v. Harmon, 296 S.W. 391. (4) The fourth ground of the motion for new trial that Instruction 1 assumed that all the defendants were principals without submitting the question to the jury seems rather fanciful in view of the fact that all three defendants were jointly charged with the commission of the robbery as principals and the State's proof corresponded to the information, with the defense relying on a plea of alibi, which the jury must have regarded as overcome by the State's evidence. Each defendant was a principal, or was innocent, under the issue joined and tried. Sec. 4446, R.S. 1929; State v. Harmon, 296 S.W. 391. (5) The court did not permit the question complained of to be asked of defendant Fred Garner over any objection, but it was answered by him as to whether he had made the threat against a State witness, "No, I didn't" before the objection was made, so the latter was too late and no motion to strike out was made. State v. Van Valkenburgh, 285 S.W. 978. "In any event he denied the threats, and his case was not prejudiced by his answer or the fact that the questions were asked." State v. Likens, 231 S.W. 580.

WESTHUES, C.

Appellants were jointly charged, by an information filed in the Circuit Court of Texas County, Missouri, with the crime of robbery in the first degree by means of a dangerous and deadly weapon. Appellants were jointly tried. The jury, by separate verdicts, found the defendants guilty and assessed the punishment of each at ten years' imprisonment in the penitentiary. A joint motion for a new trial was filed. The court overruled this motion and each defendant was separately sentenced in accordance with the verdict of the jury. From this sentence appellants were granted an appeal to this court.

According to the testimony of the prosecuting witness, Baucom, the following occurred: On November 10, 1930, the witness drove alone in his car from Kansas City, Missouri, south over United States Highway No. 71 to Carthage thence east over routes 66 and 60 through Springfield and Mountain Grove to Cabool. At this point the witness turned north intending to go to Houston, Missouri. When he reached a point within a few miles of Houston, at about eleven P.M., he was crowded off the highway by another car. The witness testified that defendant, Pete Hart, stepped on the running-board of his car with a large revolver in his hand and ordered him to stop. The witness did so and the automobile that had crowded the witness off the highway stopped just a little ahead of the witness. When the witness stepped out of his car, the three defendants ordered him to hold up his hands; searched him and took $509 in paper money from his person. The Garners then securely tied Baucom's hands and feet with a rope, while defendant, Pete Hart, kept the gun pointed at him. After some argument among the defendants and a woman who was with them, the woman removed a stocking from her foot and the defendants utilized this as a gag. A rock was placed in the stocking and the stocking tied around Baucom's head with the rock in his mouth. Baucom was struck in the back of the head and later placed in his car, which was then pushed over an embankment. The witness testified that while he was lying in the road, after he had been struck, Fred Garner drove the car over his body, breaking a number of his ribs. At the trial the witness pointed out which of the defendants had committed the various acts detailed in his evidence. Baucom did not know the defendants. He testified that the defendants alternately passed before the lights of the two cars thus enabling him to observe them closely. He also recognized their voices, as he had heard their argument on the night of the robbery. At about four A.M., the next morning Baucom was found. He had been seriously injured and was unable to speak for some time. Three or four days later, when he had regained his voice, he gave a vague description of the men to the sheriff. About a week later defendants were arrested and brought before Baucom one at a time and he positively identified them as he did at the trial, as the men who had robbed him. The prosecuting witness, at the preliminary hearing, testified that he had seen the same three men and a woman pass him in a car on his way to Houston from Kansas City; that they were driving an Essex car and he first saw them at Butler, Missouri. At the trial Baucom testified that he did not know whether the men that robbed him were the same as the men he had seen on his way from Kansas City,...