State v. Hawley
| Decision Date | 10 June 1932 |
| Docket Number | 31811 |
| Parties | STATE v. HAWLEY |
| Court | Missouri Supreme Court |
Hamlin, Hamlin & Hamlin, of Springfield, for appellant.
Stratton Shartel, Atty. Gen., and C. A. Powell, Asst. Atty. Gen., for the State.
Defendant appealed from a conviction of robbery in the first degree. Punishment was fixed, by the jury, at ten years' imprisonment in the penitentiary.
The charge against defendant was that he, in company with Alvin Bass and Tommy Vaughn, at the point of a revolver, robbed a filling station, located on highway 66, west of Springfield in Greene county, Mo.
The evidence, on part of the state, substantiates the following facts: The filling station in question, located at Plano, was owned and operated by Raymond Hilton, who sold gasoline, oil, and other supplies and in connection therewith conducted a lunchroom. On the night of January 1, 1931, at about 11 o'clock, there were present in the filling station the prosecuting witness Hilton, Allen Rose, who was staying with Hilton on this night, and two customers, E. E. Hill and Miss Kitty Bell Taylor. Defendant and his two companions stopped their car, a Buick coupe, near the gasoline tank. Hilton went to wait on them, and was greeted by Vaughn, and, at the point of a revolver, ordered to go into the filling station. Hilton did as he was told, and was followed by Vaughn and the defendant. Upon entering the station, the occupants were ordered to hold up their hands and not to make a move. Vaughn and defendant stood guard while Bass searched the station and the occupants. The three men took with them about $ 45 and a revolver belonging to Hilton. The men were not masked. Defendant had a large nickel plated revolver, which he used while standing guard and with which he threatened to shoot any one who moved. The witnesses for the state, Hilton, Rose, Hill, and Taylor, who were present, positively identified defendant as one of the men who robbed them on the night in question.
The evidence on part of the defendant tended to prove an alibi. Ten or more witnesses testified as to defendant's whereabouts upon the night of January 1, between 5 o'clock and the next morning, January 2. Defendant on his own behalf denied that he was with Vaughn and Bass at the filling station or that he had any part in the robbery.
Defendant filed a lengthy motion for a new trial. The questions raised therein, however, may well be treated under three headings: First, defendant contends that the court permitted the prosecuting attorney to cross-examine defendant on matters not referred to in the examination in chief; second, the defendant contends that the trial court erroneously permitted the state to introduce in rebuttal evidence of another and different offense; third, complaint is made of improper remarks, made by the prosecuting attorney during his argument to the jury. These in their order named.
The defendant on direct examination denied his presence at the place, where and at the time the robbery occurred, in the following manner:
Defendant denied seeing the state's witnesses on the night of January 1, and also denied having a revolver or of ever owning a nickel plated revolver. It has often been ruled that section 3692, R. S. Mo. 1929, does not limit the state in its cross-examination to a categorical review of the matter testified to, by defendant, on direct examination. But the cross-examination may extend to any matter referred to or within the scope of the direct examination. State v. Glazebrook (Mo. Sup.) 242 S.W. 928, loc. cit. 931 (4), and cases there cited. The defendant, by his testimony on direct examination, indirectly at least, denied being in company with Bass and Vaughn on the night of the robbery. Therefore the cross-examination of which defendant complains, with reference to his acquaintance with Bass and Vaughn and to his being with them on the night in question, was proper. It was also within the proper scope of cross-examination to ask defendant if he was not present at another point on highway 66 in a Buick coupe with Bass and Vaughn at 10 o'clock on the night of January 1. On direct examination defendant testified that he was at a party, and gave the names of those present, and denied that he owned a Buick coupe.
The next point made is that the court erred in permitting the state to prove an independent crime. The evidence of a separate and distinct crime was clearly inadmissible under the general rule that the state is not permitted to show other offenses, but there are certain exceptions to the general rule. 16 C. J. 586, § 1132. The evidence was admissible under one of such exceptions to the general rule. The state has the right to introduce any evidence it may have that would tend to disprove an alibi, offered by a defendant or where the identity of a defendant is in question, even though in...
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