State v. Nicholson, 34161.

• Decision Date: 05 November 1935
• Docket Number: No. 34161.,34161.
• Citation: 87 S.W.2d 425
• Parties: THE STATE v. ROLLIE (RILEY) NICHOLSON, Appellant.
• Court: Missouri Supreme Court

87 S.W.2d 425

THE STATE v. ROLLIE (RILEY) NICHOLSON, Appellant.

No. 34161.

Supreme Court of Missouri.

Division Two, November 5, 1935.

Appeal from Stoddard Circuit Court. — Hon. E.M. Dearing, Judge.

REVERSED AND REMANDED.

Byron Kearbey and Lawrence E. Tedrick for appellant.

(1) The cross-examination consisted of over 11 pages most of which was outside of the scope of the direct examination. Defendant cannot be cross-examined as to matters not mentioned in the direct examination. Sec. 3692, R.S. 1929; State v. Worton, 41 S.W. 218; State v. Pfeifer, 183 S.W. 337; State v. Swearengin, 190 S.W. 268; State v. Goodwin, 195 S.W. 725; State v. Jones, 197 S.W. 156; State v. Pierson, 56 S.W. (2d) 120. (2) Defendant's motion to strike out evidence erroneously admitted should have been sustained. McGinniss v. K.C. Rys. Co., 192 S.W. 115; Feren v. Epperson Inv. Co., 196 S.W. 435; State v. Eisenhour, 33 S.W. 785; State v. Hilton, 154 S.W. 729. (3) In view of the errors pointed out above, the court should have granted defendant a new trial and his failure to do so constituted reversible error. Cases under Points 1 and 2; Sec. 3734, R.S. 1929.

Roy McKittrick, Attorney General, and Russell C. Stone, Assistant Attorney General, for respondent.

The court did not err for failure to sustain defendant's objection to testimony elicited from defendant that was allegedly outside the scope of the direct examination. Sec. 3692, R.S. 1929; State v. Miller, 156 Mo. 86; State v. Keener, 225 Mo. 500.

TIPTON, P.J.

An information was filed in the Circuit Court of Dunklin County, Missouri, charging the appellant and others with robbery in the first degree with a dangerous and deadly weapon. On change of venue the case was sent to Stoddard County, where appellant was convicted and his punishment assessed at twenty-five years' imprisonment in the State penitentiary. From this sentence he has duly appealed to this court.

The evidence tended to show that during the month of October, 1933, Dee McMunn, the prosecuting witness, operated a money exchange at Senath, Missouri, for Irl, Byron and Langdon R. Jones. It was the custom of Dee McMunn to go each morning from Kennett, Missouri, to Senath, with sums of money varying to $10,000. At about seven-thirty o'clock the morning of October 28, 1933, he started from Kennett to Senath with $4295. Shortly before he reached Senath, the car in which he was riding was forced off the road by another car which was occupied by two men. After this car had stopped, one of the occupants of the other car, whom he later learned to be Jap Brooks, compelled him to raise his hands. While pointing a gun at him, Jap Brooks reached into the car and took the money from behind the seat and handed it to Elmer Craft, the other occupant of the car. Craft drove away with the money. Brooks then got into the car with McMunn and compelled him to drive down a dirt road about three miles from the scene of the robbery. At this place Brooks compelled McMunn to get out of the car and warned him to remain there for an hour. Shortly after Brooks had driven away, McMunn reported the robbery to Irl Jones, president of the Cotton Exchange Bank, at Kennett.

Shortly thereafter, the car which was used in the robbery was found abandoned in the vicinity of Senath, Missouri. A few days prior to the robbery this car had been purchased by the appellant in Poplar Bluff, Missouri. About a week after the robbery the appellant was arrested.

The appellant made a confession to the officers and others in which he said that he, Tom Craft, Elmer Craft, D.G. Doherty and Jap Brooks conspired with each other to commit the robbery, and that he purchased the car that was used in the robbery. The confession also stated that he received $1190 from the proceeds of the robbery.

[1] The only assignment of error that the appellant makes is that his cross-examination was improper, in that he was cross-examined on subjects not brought out in his examination in chief. Appellant's testimony in chief is as follows:

"Q. State your name to the jury. A. Rollie Nicholson.

"Q. Are you one of the defendants? A. Yes, sir.

"Q. Rollie, this car that you bought for Green Craft, tell the jury whether you knew at the time you bought it that the car was to be used in a robbery or attempted robbery? A. I did not.

"Q. Were you present at the time and place in Dunklin County when this money was taken from Dee McMunn? A. I was not."

Section 3692, Revised Statutes 1929, provides that the defendant in a criminal case may testify in his own behalf, and further provides that "no person on trial ... shall be required to testify, but any such person may, at the option of defendant, testify in his behalf, ... and shall be liable to cross-examination, as to any matter referred to in his examination in chief, and be contradicted and impeached as any other witness in the case... ."

Respondent contends that it is not confined to a mere categorical review of the issues tendered by the question asked on direct examination. To this we agree; State v. Miller, 156 Mo. 76, 56 S.W. 907; State v. Keener, 225 Mo. 488, 125 S.W. 747.

"It is urged that defendant may not simply deny his acts, and then refuse to go into details to contradict his denial when the State cross-examines him, and that this is what is meant in State v. Miller, supra, where it is substantially said that the State is not to be confined to a categorical reiteration of defendant's examination in chief. But even a departure from categorical reiteration does not comport a latitude as broad as the entire case, as was here present." [State v. Pfeifer, 183 S.W. 337, 267 Mo. 23.]

The cross-examination in the case at bar consisted of eleven pages of the bill of exceptions. It covers the entire case. For instance, he was asked, "Well, you got some of the money, didn't you?" This in itself would not call for a reversal of the case, but appellant was asked if Craft did not give him some of the money at Kennett, Saturday night. When under the State's theory, the robbery took place at a different place than Kennett. He was also required to tell the route he...