State v. Hogan

• Decision Date: 11 June 1923
• Docket Number: No. 24100.,24100.
• Citation: 252 S.W. 387
• Parties: STATE v. HOGAN.
• Court: Missouri Supreme Court

252 S.W. 387

STATE v. HOGAN.

No. 24100.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

James Hogan was convicted of robbery, and he appeals. Reversed and remanded.

James Booth, of Pacific, W. L. Cole, of Union, and Frank H. Farris, of Rolla, for appellant.

Jesse W. Barrett, Atty. Gen., R. W. Otto, Asst. Atty. Gen., Howard Sidener, of St. Louis, and Fred Kasman, of Union, for the State.

HIGBEE, C.

The defendant was charged by indictment with the crime of robbery in the first degree, in that he, on April 4, 1921, in the city of St. Louis, feloniously robbed one Erris Pillow of $155 and one United States certificate of indebtedness, of the denomination of $500. A change of venue was awarded to Franklin county, where the defendant was tried, found guilty, and sentenced to imprisonment for a term of 15 years in the penitentiary.

Erris Pillow, a negro, was employed by the North St. Louis Savings Company as a janitor and messenger. The evidence for the state shows that at about 11 a. m., on April 4, 1921, Pillow left the building of the trust company, carrying the money, certificates, several bags of coins, canceled checks, and other valuables in a canvas bag, for the purpose of taking them to the First National Bank. When he reached the corner of Jefferson and Wash streets, he was assaulted by two ruffians, who threw a coat over his head, put him into an automobile, and drove away with him and the bag. At 11:45 a call came In at the Eighth District police station that there was a hold-up on the Compton avenue viaduct. Officers were assigned to the case, and proceeded at once in a car to the viaduct, where they found an abandoned Buick automobile with a broken wheel; it had collided with a coal truck. Getting certain clues, they proceeded, and soon found three men in an alley, one of whom was Hogan, who ran across the street, jumped a five-foot fence in an effort to escape, and hid behind a box, where Hogan was found crouched down on his knees. He was arrested, but the others escaped. On the suggestion of a colored woman, Hogan was taken by the officers to the basement of an abandoned house nearby, where they found "a satchel with a lot of canceled checks, certificates of indebtedness and some pennies, a lot of stuff." Some of the checks were scattered around. The satchel, checks, certificates, etc., were identified as being those carried by Pillow on the occasion above mentioned.

William Lossemann testified:

That he was at the corner of Jefferson and Wash streets about 11 a. m. of April 4, 1921, and saw two men wrestling with a fellow who had a grip in his hand. "I couldn't say what color he was; he had a coat over his head. * * * The man they were wrestling with dropped the grip, and somebody else picked it up, and they threw this fellow in the automobile and drove away." He thought it was a Buick car, and they drove east very fast.

Later in the day witness saw Hogan at the police station and identified him as the same person who threw the coat over the man's head at the corner of Jefferson and Wash streets. He also identified the defendant at the trial.

John F. Hagerty, a witness for the defendant, testified he was at the scene of the robbery at about 11:30 on April 4th, and saw two men struggling with a colored man, who had a satchel in his hand. They put him in a machine and drove away. Hogan was not one of these men. He had known Hogan, but not personally, for five years.

Eugene Martineau, a police officer, testified:

That he was in the Ninth District police station about noon on April 4, 1921. (A coat was here handed to the witness.) That, when he came into the station, Pillow was standing there in the outer office and talking to Capt. Johnson and had that coat on his arm. Witness and Officer Gartland took Pillow and the coat to the Eighth police station, where Hogan was confined in a cell. Officer Mier brought the defendant from his cell into the presence of Pillow.

Over the objection and exception of the defendant's counsel the witness testified:

That Pillow looked at Hogan and said: "That was the man that threw the coat over my head and robbed me." Hogan opened not his mouth.

Four other officers also testified to the statement made by Pillow in the presence of the defendant. The coat was offered in evidence. It was identified by the officer by "the initials `J. B.' and the marks on the inside, `J. B. Hogan,' with the figure `6' in indelible and `3801,' the number of the coat." The officer made a notation of these marks at the time. Pillow died before the trial. The defendant offered evidence in support of his plea of alibi.

1. Appellant assigns as error the admission in evidence or the statement made by Pillow in the presence of the defendant. In State v. Goldfeder (Mo. Sup.) 242 S. W. 403, 404, David E. Blair, J., said:

"It has been repeatedly ruled by this court that, when one is under arrest charged with a crime, he is under no duty to make any statement concerning the crime with which he stands charged. He is then under no duty to deny any charges made against him, and statements tending to implicate him, made in his presence and hearing by others at such time and under such circumstances, and not denied by him, are not admissible in evidence against him on the trial."

This has long been the rule in this and other jurisdictions, as shown by the cases cited in the opinion. This humane rule has higher sanction than mere judicial precedent. At the trial of Jesus before the Sanhedrin, we read:

"59. Now the chief priests and elders, and all the council, sought false witness against Jesus, to put him to death;

"60. But found none; yea, though many false witnesses came, yet found they none. At the last came two false witnesses.

"61. And said, This fellow said, I am able to destroy the temple of God, and to build it in three days.

"62. And the high priest arose, and said unto him, Answerest thou nothing? What is it which these witness against thee?

"63. But Jesus held his peace."

                                 —Matthew 26: 59-63
                

When He was before Pilate:

"11. And Jesus stood before the governor: and the governor asked him, saying, Art thou the King of the Jews? And Jesus said unto him, Thou sayest.

"12. And when he was accused of the chief priests and elders, he answered nothing.

"13. Then said Pilate unto him, Hearest thou not how many things they witness against thee?

"14. And he answered them never a word; insomuch that the governor marveled greatly."

                                 —Matthew 27: 11-14
                

2. It is insisted by the learned Attorney General:

"The evidence objected to was offered to establish the identity of the accused, and not to prove an admission by his silence, and, in view of the fact that the defendant's identity was proved by competent evidence; and since the evidence of the defendant's guilt is so overwhelming, even if the testimony complained of had been stricken out, the other evidence would have been sufficient to prove the identity of defendant. We do not think the evidence complained of, even though inadmissible, was prejudicial in this case."

The evidence offered by the state, tending to prove that defendant was at the scene of, and participated in, the robbery, is...