State v. Pope

• Decision Date: 21 March 1936
• Docket Number: 34686
• Citation: 92 S.W.2d 904,338 Mo. 919
• Parties: The State v. Lester Pope, Appellant
• Court: Missouri Supreme Court

92 S.W.2d 904

338 Mo. 919

The State v. Lester Pope, Appellant

No. 34686

Supreme Court of Missouri

March 21, 1936

Appeal from DeKalb Circuit Court; Hon. Richard B Bridgeman, Judge.

Reversed and remanded.

Edward G. Robison for appellant.

Roy McKittrick, Attorney General, and Covell R Hewitt, Assistant Attorney General, for respondent.

(1) No error in statement of prosecuting attorney with reference to conspiracy to rob. State v. Kolafa, 236 S.W. 305; State v. Yates, 252 S.W. 644. (2) No error in permitting Briscoe Burnham to testify that he was assistant cashier of the Bank of Fairport on July 12, 1933, and that the bank was incorporated. Sec. 3688, R. S. 1929; Kelly's Criminal Law (4 Ed.), sec. 798; State v. Moreaux, 254 Mo. 412; State v. Carson, 18 S.W.2d 457; State v. Taylor, 274 S.W. 47. (3) No error committed by trial court in permitting accomplices to testify as to previous arrangements with appellant to commit the robbery. State v. Yates, 252 S.W. 644; State v Hembree, 242 S.W. 914; State v. Kolafa, 236 S.W. 305; State v. Carroll, 232 S.W. 702; State v. Casto, 231 Mo. 398. (4) Prosecuting attorney sufficiently admonished for alleged remark. (5) The appellant's reputation as a law-abiding citizen was an issue in the case, and no error in permitting State to cross-examine witnesses as to their knowledge of specific derelictions of appellant. State v. Parker, 172 Mo. 207; Kelly's (4 Ed.), sec. 382, p. 339; 1 Greenleaf on Ev. (16 Ed.), p. 588; State v. Crow, 107 Mo. 347; State v. Seay, 222 S.W. 429. (6) No error shown by alleged separation of jurymen by sleeping in separate rooms at hotel. No misconduct shown by any evidence. Jurors' alleged misconduct refuted by jurors' affidavits and affidavits of deputy sheriffs. State v. Shawley, 67 S.W.2d 88; State v. Schaeffer, 172 Mo. 335. (7) No error in prosecuting attorney's argument where a statement of his opinion of guilt was based on the evidence. State v. Francis, 52 S.W.2d 556; State v. Midkiff, 278 S.W.2d 683; State v. Blackmore, 38 S.W.2d 36. (8) Instruction 3, on "reasonable doubt," was proper and in the approved form. State v. Neuslin, 25 Mo. 124; State v. Lewis, 201 S.W. 80; State v. Judge, 285 S.W. 718, 315 Mo. 156; State v. Adair, 61 S.W. 188; State v. Temple, 194 Mo. 237; State v. Maupin, 93 S.W. 383. (9) Instruction 4, on "credibility of the witnesses," correctly stated the law. State v. Hudspeth, 60 S.W. 141, 159 Mo. 178. (10) Instruction 7, the instruction on the accomplice's testimony, is not error. State v. Sassaman, 214 Mo. 729; State v. Crab, 121 Mo. 565; State v. Bobbitt, 215 Mo. 42; State v. Yates, 252 S.W. 641; State v. West, 246 S.W. 541.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Lester Pope was convicted of the robbery in the first degree of the Bank of Fairport, a corporation, and appeals from a judgment imposing a sentence of five years' imprisonment.

From the State's evidence it appears that soon after the noon hour of July 12, 1933, William E. Johnson and Jesse J. Colter entered the Bank of Fairport and at the point of guns compelled Briscoe Burnham, assistant cashier of said bank, to open the safe door and cash drawer and robbed said bank of $ 2,147. Johnson and Colter pleaded guilty and testified on behalf of the State against appellant. Their testimony is to the effect they, appellant and one Marley were involved in the robbery; that appellant first mentioned the matter to Johnson a month or so before the robbery; that on July 11, 1933, Johnson and Colter were at Pope's farm located about sixty miles from Fairport and, after some conversation, Johnson and appellant went to Fairport and looked the situation over; that on the 12th Johnson, Colter and Marley met appellant at his farm and all left for Fairport, Johnson, Colter and Marley in a Willys-Knight automobile and appellant in a Model A Ford coupe; that Johnson, Colter and Marley took leave of appellant some distance from Fairport and drove to Fairport; that Johnson and Colter robbed the bank while Marley remained in the car; that appellant furnished one of the guns used in the commission of the robbery; that after the robbery they drove back into the country to where appellant, under previous arrangements, had parked his Ford and was to meet them; that Johnson and Colter got out of the Willys-Knight and into the "rumble" seat of appellant's Ford coupe, laid down, and put the "turtle back" down over them; and that they went to the barn on appellant's farm and divided the money four ways, appellant receiving one-fourth. Other evidence on behalf of the State tended to show admissions of guilt on the part of appellant and corroboration as to his presence on the highway on the day in question, as well as other corroborating facts.

The defense was a denial of all knowledge of or any participation in the robbery; a denial of the making of any statement or statements in the nature of an admission of guilt; the impeachment of the witnesses Johnson and Colter; the establishment of an alibi for the day preceding and the day of the robbery; and the establishment of defendant's good reputation as a peaceful, law-abiding citizen and for truth and veracity. The detail of this evidence need not be set forth. If believed by the jury, it warranted an acquittal.

Appellant's demurrer at the close of the case is based upon the contention there was no competent evidence establishing the incorporation of the Bank of Fairport; that the money taken was the property of said bank or that Briscoe Burnham was assistant cashier of said bank and in charge of said funds. We think said facts were established by substantial evidence. As the case should be retried no occasion exists for any want of evidence establishing such facts.

Under Section 3688, Revised Statutes 1929 (Mo. Stat. Ann., p. 3239), the existence of a banking corporation, may be proved "by general reputation. . . ." [State v. Moreaux, 254 Mo. 398, 412, 162 S.W. 158, 162(11).] Appellant argues the direct statement of one who had been assistant cashier of the bank for over eighteen years that the bank was incorporated (admitted over objection) [see State v. Taylor (Mo.), 274 S.W. 47, 49(2), citing cases] did not establish its incorporation "by general reputation" [see, for instance, 14 C. J., p. 176, note 10[b] (1)]. We need not rule the issue; as the State offered in evidence (over appellant's objection) an exhibit, which appellant abstracts in the bill of exceptions as being a typewritten statement, dated "March 8, 1909," stating "that 'Fairport Bank of Fairport, Missouri,' has complied with the law and is duly incorporated from this date." Signed "John E. Swanger, Bank Commissioner." The certificate was to "Fairport Bank of Fairport, Missouri," a corporation. The information alleged the "Bank of Fairport," a corporation, was robbed. The trial and this appeal proceeds upon the theory that in each instance reference is made to one and the same corporate entity. We so consider it. [State v. Decker, 217 Mo. 315, 320(1), 116 S.W. 1096, 1097(1).] The prosecuting official should allege and prove the incorporation of the bank robbed under its correct corporate name. Appellant argues said exhibit is not the bank's charter or a certified copy thereof. Section 1095, Revised Statutes 1909 [somewhat similar to now Sec. 5347, R. S. 1929, Mo. Stat. Ann., p. 7569] required banking corporations to make a specified showing to the State Bank Commissioner before commencing business; and required, upon the requisite showing and after examination, that said Bank Commissioner "shall grant them a certificate to that effect. Such certificate . . . shall be taken in all the courts of this State as evidence of such incorporation." It thus appears said exhibit, although not the charter of said bank or a certified copy thereof, under said Section 1095, was competent and sufficient evidence of incorporation.

Although appellant objected to witness Burnham testifying he was assistant cashier of the bank on the ground the records of the corporation were the best evidence of his employment, it was competent to establish his official position with the bank by the corporate records or by the parol testimony of a witness having personal knowledge of the fact where his title as an officer de jure was not directly involved. The witness, assistant cashier for eighteen years, had personal knowledge of his official position with the corporation and his employment as assistant cashier was a collateral issue in the case. [See 16 C. J., p. 614, nn. 28-30; 22 C. J., p. 1012, nn. 49, 52; 2 Fletcher on Corporation (1931 Ed.), sec. 282; State v. Holcomb, 86 Mo. 371, 377.]

The information charged appellant as principal with the commission of an offense of robbery in the first degree under Section 4058, Revised Statutes 1929 (Mo. Stat. Ann., p. 2856); following informations heretofore held sufficient in form and substance therefor. [State v. Yates (Mo.), 252 S.W. 641, 644(2), and cases cited; State v. Huffman (Mo.), 238 S.W. 430, 435(1).]

Appellant contends statements of the prosecuting attorney in his opening statement and evidence showing the existence of a conspiracy between witnesses Johnson and Colter and appellant to commit the offense constituted reversible error because the information contains no charge of conspiracy; and relies upon Sections 3686 and 4244, Revised Statutes 1929 (Mo. Stat Ann., pp. 3238 and 2964, respectively), and Section 22, Article II, Missouri Constitution, Section 4244 provides: "No agreement, except to commit a felony upon the person of another, or to commit arson or burglary, shall be deemed a conspiracy, unless some act besides such agreement be done to effect the object thereof, by one or more of the parties to such agreement."...