State v. Kelley

• Decision Date: 28 May 1926
• Docket Number: 26891
• Citation: 284 S.W. 801
• Parties: STATE v. KELLEY et al
• Court: Missouri Supreme Court

284 S.W. 801

STATE v. KELLEY et al

No. 26891

Supreme Court of Missouri, Second Division

May 28, 1926

C. E Bragg, of Caruthersville, for appellants.

North T. Gentry, Atty. Gen., and Claud Curtis, Sp. Asst. Atty Gen., for the State.

OPINION

BLAIR J.

Appellants have appealed from separate judgments rendered against them in the circuit court of Pemiscot county upon convictions under an information charging them jointly with the crime of robbery in the first degree. The jury returned separate verdicts, assessing the punishment of each appellant at a term of five years in the penitentiary.

The testimony on the part of the state tended to prove that, on October 21, 1924, at Hayti, in said county, appellants, who are white men, accosted the prosecuting witness, Finis Banks, who was a negro. One of the appellants drew a knife upon Banks, and commanded him to throw up his hands and to give up his money. The other appellant went through his pockets, and took therefrom $ 165 in money. Banks testified that he let appellants take the money through fear of violence. He positively identified both appellants. Banks ran away as soon as he was released, and found one S. P. Oates, and together they returned to the scene of the alleged robbery, overtook appellants in a nearby cotton field, and apprehended them. Appellants thereupon gave up the money, admitting that they got it from Banks. However, they stated that they had won it from him by reason of two or more bets made by him upon his ability to open a trick knife. No knife of any kind nor any other weapon was found upon appellants. They said that Banks ran away with the knife which was used in separating him from his money. Banks denied that he took the knife.

At the trial appellants testified that they did not draw a knife upon Banks, did not take money away from him, and adhered to their previous stories about winning the money from him through bets upon his inability to open the knife. One Lefler testified that he saw a negro and two white men, who looked like Banks and the appellants, standing together near the scene of the alleged robbery, and that the negro then had money in his hand.

According to the story of Banks, appellants robbed him by putting him in fear and by abstracting the money from his pocket. It is clear that his testimony constituted substantial evidence of the guilt of the appellants as charged, and fully authorized the jury to find both appellants guilty. On the other hand, if the jury had disbelieved the story of Banks, and had accepted the stories of appellants. a verdict of not guilty of robbery would have been likewise justified. The assignments of error dealing with the insufficiency of the evidence to support the verdict and with alleged error in the trial court's refusal to instruct the jury to find the appellants not guilty are without merit.

Appellant Kelley took the witness stand, denied that a knife was drawn upon Banks, or that he was compelled to submit to a robbery. He then went into details concerning the alleged winning by appellant Smith of $ 165 from Banks through bets made by him upon his ability to open a trick knife, and was cross-examined at length by the state. Appellant Smith was then placed upon the witness stand and the following constituted his entire direct examination:

'Q. Tell the jury whether or not at any time in October or at any other time you ever drew a knife on Finis Banks, this nigger, and made him put up his hands and take any money off of him? A. No, sir; I never did.'

Thereupon, over the objection and exception of counsel, upon the ground that such examination was not proper cross-examination, the state was permitted by the court to inquire of Smith whether he got any money from Banks, and thereupon to ask him how he got it, and then to cross-examine him concerning the character of the knife, and how much money was bet against the ability of Banks to open the knife, and how much money Banks put up. He was also required to tell from what place he came to Hayti.

We think the greater portion of such cross-examination was not proper, in view of the narrow limits of the direct examination. Said appellant could not be inquired of upon cross-examination, except 'as to any matter referred to in his examination in chief.' Section 4036, R. S. 1919. But this does not mean that the trial court thereby committed reversible error. In view of the whole record, we are unable to see how appellant Smith could have been prejudiced by such improper cross-examination. Banks had testified positively that appellants had robbed him, and Smith's direct testimony denied the robbery. Other state witnesses testified that appellants both admitted getting the money, but said that it was procured upon a bet and not by robbery. Appellant Kelley testified that appellant Smith put up money on bets that Banks could not open the knife and won the money from him in that way.

Appellant Smith's denial that he drew a knife on Banks and took the money from him, uncoupled with a denial that he was present at the scene of the alleged robbery, or got any money from Banks by any means whatever, could only be understood by the jury, under the circumstances, as a denial that he procured money from Banks by means of a robbery. Under all the circumstances in evidence, the testimony drawn from Smith by such improper cross-examination was...