State v. Mardino
| Citation | 268 S.W. 48 |
| Decision Date | 31 December 1924 |
| Docket Number | 25682 |
| Parties | STATE v. MARDINO |
| Court | United States State Supreme Court of Missouri |
Homer Cope and Thomas A. Costolow, both of Kansas City, for appellant.
Jesse W. Barrett, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty Gen., for the State.
WHITE J., concurs. WALKER, J., absent.
Defendant has appealed from the judgment of criminal division A of the circuit court of Jackson county, whereby he was sentenced to confinement in the penitentiary for five years upon conviction of the crime of robbery in the first degree.
For the reason that it is not contended that the evidence was not sufficient to authorize submission of the case to the jury it is unnecessary to set out the evidence at length. The evidence of Mrs. Stump, the prosecutrix, that two men came to her house in Kansas City, in broad daylight, gained entrance thereto, and took and carried away certain jewelry and other property belonging to her, by drawing a 'gun' upon her and thereby putting her in fear of injury to her person, is uncontradicted. Prosecutrix positively identified the defendant as one of the robbers. There is no evidence that defendant thereafter had possession of any of said property. After one Hall had been arrested, because prosecutrix thought he had planned the robbery, the stolen property was returned.
The defense was an alibi. Defendant was 21 years of age at the time of the trial and at the time of the alleged robbery. At the time the robbery occurred defendant was employed by the Union Auto Livery Company and worked from 7 o'clock in the evening until 7 o'clock in the morning. The exact time of the robbery fixed by prosecutrix was 7:20 a. m., April 14, 1923. She fixed the time by the fact that the robbery occurred about 5 minutes after her husband left for his work, which he regularly did at 7:15 a. m.
Defendant denied participation in the robbery, or that he was at 3940 Paseo at 7:20 a. m., the time fixed by prosecutrix. He did not hear of the robbery until he was arrested. He said that, after leaving work on the morning of April 14th, he left the taxicab station 'about 7:10 or 7:15 in the morning.' He had to wait a few minutes after 7 o'clock for his employer, Joe Anch, to arrive and relieve him. He was paid his weekly wages of $ 18, and his employer then drove him in an automobile to his room. Defendant lived at La Rue Hotel, 308 East Tenth street, and arrived there at about 7:20 a. m. (the exact moment fixed by the prosecutrix as the time of the robbery). Defendant went immediately to his room. He roomed with one Fallico. He found his roommate and his roommate's sister there. He paid his share of the room rent to his roommate. His roommate's sister's baby was sick, and defendant helped care for the baby until the doctor arrived. Defendant paid the doctor and took a receipt. A receipt for such purported purpose was put in evidence and bore the date of April 14, 1923. After the doctor departed, defendant went to bed, and did not get up again until 2:30 or 3 p. m.
In other words, if defendant's testimony concerning his whereabouts was true, he was not one of the men who robbed prosecutrix. Defendant was corroborated by Joe Anch, his employer, Charles Fallico, his roommate, Mrs. Eva Ross, his roommate's sister, and by Dr. Scimeca. The latter was the physician who was called to attend the sick baby and testified that he wrote the receipt offered in evidence.
I. It is urged that the court erred in admitting testimony that the accused, while under arrest, remained silent when charged with crime. Defendant relies upon State v. Hogan (Mo. Sup.) 252
S.W. 387, and State v. Goldfeder (Mo. Sup.) 242 S.W. 403. In the latter case we said:
The trouble with defendant's contention here is that no objection was made below sufficient to save the point for review. We quote from Mrs. Stump's testimony as follows:
'Q. Just tell what happened there. A. We were driving down Tenth street and looking for another party to that, a former employee that I thought possibly knew something about the case, and I saw the defendant, and I said to the officer: And the officer brought him to the car, and asked him what he did with my things, and he dropped his eye and didn't look at me, and didn't seem to want to say anything.
'Mr. Cope: The defendant wishes to object to the last statement of the prosecuting witness, in that she stated that the defendant didn't look at her and didn't seem to want to do anything, as highly prejudicial and inflaming the minds of the jury.
No objection was made upon the ground urged here that it was improper for witnesses to testify that defendant, while under arrest, made no denial when accused of crime. The objection made was that the answer was 'highly prejudicial and inflaming the minds of the jury.' In one sense, all testimony tending to show that a defendant is guilty of crime is prejudicial to him. Such objection is really no objection at all. Besides, the objection came too late to raise the question. If defendant had moved to strike out the answer upon the ground urged here, the trial court might have sustained the motion. If it had overruled it, the question would have been raised for review. We cannot convict the trial court of error in admitting testimony, assuming it was subject to proper objection or motion to strike, when no such reason for its exclusion was urged below. Apparently no objection was made to the testimony of the witness concerning what she told the officer. The objection made here has the earmarks of an afterthought, was not passed upon by the trial court, and the assignment must be overruled.
The officer testified to substantially the same facts in relation to defendant's conduct when defendant was asked about the jewelry of prosecutrix. No objection whatever was then made. Defendant now claims that testimony was also improperly admitted, and that the error in admitting it was preserved by the objection to the same sort of testimony by Mrs. Stump. As no proper objection was made to her testimony, no proper objection was carried over as to the testimony of the officer.
II. The following occurred during the cross-examination of Charles Bland in rebuttal:
'Mr. Cope: The defendant objects to that question for the reason it is leading and suggestive, tends to put the answer in the witness' mouth, not proper cross-examination, and for the further reason, if the court please, the question is absolutely immaterial and has no bearing on this case whatsoever. It's offered solely for the purpose of prejudicing this defendant in the minds of the jury.
'Mr. Alton: It's for the purpose of impeaching and contradicting the testimony of the defendant.
'Mr. Alton: Read the question.
In order to understand the force and effect of the foregoing, it is necessary to quote from the cross-examination of defendant as follows:
'Mr. Costolow: This is all, to my mind, highly prejudicial, and I ask it be stricken out, and I further move the court to dismiss the jury for the reason the defendant has been prejudiced beyond further recovery.
'Mr. Alton: Admissions by the defendant in regard to his wrongdoing are always admissible for impeachment purposes only.
'Mr. Costolow: Not in circumstances like this, because all he asked him about was a plain arrest and never any conviction.
'The Court: You can't go...
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