State v. Ransom

• Decision Date: 23 December 1936
• Docket Number: 34832
• Citation: 100 S.W.2d 294,340 Mo. 165
• Parties: The State v. Henderson Ransom and Estel Johnson, Appellants
• Court: Missouri Supreme Court

100 S.W.2d 294

340 Mo. 165

The State v. Henderson Ransom and Estel Johnson, Appellants

No. 34832

Supreme Court of Missouri

December 23, 1936

Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge.

Affirmed.

Bradley & Noble for appellants.

(1) The court erred in refusing to grant defendants a new trial for the reason that the evidence is not sufficient to support the verdict. State v. Liston, 315 Mo. 1313, 292 S.W. 45; State v. Prendible, 165 Mo. 353, 65 S.W. 559; State v. Harrison, 263 Mo. 654, 174 S.W. 57. (2) The court erred in permitting the prosecuting attorney to read the information to the jury. State v. Richards, 334 Mo. 485, 67 S.W.2d 58. (3) The court erred in permitting the prosecuting attorney to ask the witness Lester Stewart if the defendant Estel Johnson said to the witness Stewart at the time when it is alleged that witness Stewart was lying down "Get your God damned head down." Such inquiry was leading and suggestive of an answer. Leading questions are largely within the discretion of the court. Coots v Lynch, 152 Mo. 161, 53 S.W. 895. But like all such discretions, it should not be abused as it was here. Sager v. Samson Mining Co., 178 Mo.App. 503, 162 S.W. 762. (4) The court erred in permitting the prosecuting attorney to ask the witness Lester Stewart and permitting the said witness to answer the leading question if he told Ladd, the owner of the station, who it was that robbed the station. Coots v. Lynch, 152 Mo. 161, 53 S.W. 895; State v. Powell, 217 S.W. 35. (5) The court erred in permitting the witness J. F. Ladd, the owner of the station to testify that the witness Lester Stewart advised him who it was that committed the robbery. Cases under Point (4), supra. (6) The court erred in permitting the prosecuting attorney to ask the witness Ladd, the owner of the station, and permitting him to answer if the witness Lester Stewart made any statement to him immediately after the robbery as to whether or not he, Stewart, recognized or did not recognize those who robbed the station. Cases under Point (4), supra. (7) The court erred in permitting the prosecuting attorney to ask the witness Ladd and permitting Ladd to answer the question: Did he, meaning the witness Stewart, state to you that he recognized those who robbed this station? (8) The court erred in permitting the prosecuting attorney to ask the witness Thos. F. Donaldson, sheriff, and permitting the witness to answer as to whom he arrested for the alleged robbery. (9) The court erred in permitting the prosecuting attorney to cross-examine the witness Addie Ransom on a number of trifling and immaterial and irrelevant subjects. State v. Lee, 228 Mo. 480, 128 S.W. 987. (10) The court erred in permitting the prosecuting attorney to ask the witness Osco Stewart and permitting the witness to answer as to what the witness Floyd Stewart may have said to his wife about staying all night away from home, when Osco Stewart and Floyd Stewart were about ready to leave the home of Floyd Stewart on Saturday evening before the robbery on Sunday morning to go to the home of the brother-in-law of Floyd Stewart. (11) The court erred in permitting the prosecuting attorney to ask the witness Osco Stewart and permitting him to answer as to forgetting about the frost on the automobile in his direct examination. (12) The court erred in permitting the prosecuting attorney to repeatedly interrogate the witness Ada Ransom, mother of the defendant Ransom about the medicine she took, the kind of medicine she took, when she took the medicine, etc. (13) The court erred in permitting the prosecuting attorney to ask on the cross-examination of the defendant Henderson Ransom and in compelling the witness Henderson Ransom to answer, as to what felony he had been theretofore convicted of. Sec. 1752, R. S. 1929. (14) The court erred in permitting the prosecuting attorney to ask on the cross-examination of the defendant Henderson Ransom and compel him to answer as to why he went home on Saturday afternoon before the robbery on the following Sunday morning. Such inquiry was without the scope of the direct examination. Sec. 3692, R. S. 1929; State v. Pierson, 331 Mo. 636, 56 S.W.2d 120; State v. Sharp, 233 Mo. 269, 135 S.W. 488; State v. Culpepper, 293 Mo. 249, 238 S.W. 801; State v. Edelen, 288 Mo. 160, 231 S.W. 585; State v. Swearengin, 269 Mo. 177, 190 S.W. 258; State v. Hillebrand, 285 Mo. 290, 225 S.W. 1000; State v. Santins, 186 Mo. 976. (15) The defendant Ransom was deprived of a fair and impartial consideration by the jury because of the unfair, incompetent and prejudicial inquiries made by the prosecuting attorney on the cross-examination as to the occupation of the defendant Henderson Ransom and where he got the car that he was driving on the night of the alleged robbery. All such inquiries were clearly beyond the scope of the direct examination of the defendant. (16) The court erred in permitting the prosecuting attorney to ask defendant Estel Johnson on cross-examination and compelling the said defendant to answer as to what crimes he had theretofore been convicted of. Sec. 1752, R. S. 1929. (17) Prejudicial error was committed against the defendants by the argument of the prosecuting attorney and the rulings of the court in respect thereto. State v. Connor, 252 S.W. 713; State v. Taylor, 8 S.W.2d 29; State v. Campbell, 278 S.W. 1051; State v. Richards, 67 S.W.2d 58; State v. Burns, 237 S.W. 505; State v. Jackson, 95 Mo. 623, 8 S.W. 749; State v. Lockhart, 188 Mo. 427, 87 S.W. 457; State v. Young, 99 Mo. 666, 12 S.W. 879; State v. Ulrich, 110 Mo. 350, 19 S.W. 656; State v. Fischer, 124 Mo. 460, 27 S.W. 1109; State v. Bobbst, 131 Mo. 328, 32 S.W. 1149; State v. Prendible, 165 Mo. 329, 65 S.W. 559; State v. Schneider, 259 Mo. 319, 618 S.W. 604; State v. Dixon, 253 S.W. 746.

Roy McKittrick, Attorney General, and Wm. W. Barnes, Assistant Attorney General, for respondent.

(1) There is substantial evidence to support the verdict. State v. Richardson, 36 S.W.2d 946; State v. Tillman, 329 Mo. 312. (2) Reading the information to the jury constitutes no prejudicial error. State v. Richards, 67 S.W.2d 62; State v. Gilmore, 81 S.W.2d 433; State v. Gamble, 108 Mo. 506. (3) The statement made by co-defendant Johnson to the witness Stewart was competent as part of res gestae. State v. Stallings, 64 S.W.2d 645; State v. Martin, 124 Mo. 529. (4) Making known a fact to a party and not giving conversation constitutes no error. (5) This assignment is not founded upon facts appearing in the record. State v. Sinovich, 46 S.W.2d 879. (6) The court properly admitted the testimony of the witness Stewart relating to the identity of the robbers. State v. Sharp, 183 Mo. 735; State v. Gentry, 44 S.W.2d 31; State v. Bowers, 29 S.W.2d 59. (7) Scope of cross-examination of defendants' witness in criminal case is largely within discretion of trial court. State v. Barnes, 29 S.W.2d 158; State v. Albritton, 40 S.W.2d 680; State v. Ryland, 25 S.W.2d 111. (8) The cross-examination of defendants was proper for the purpose of affecting their credibility. Sec. 1752, R. S. 1929; State v. Lonon, 56 S.W.2d 381; State v. McBride, 231 S.W. 594. (9) The questions objected to were for impeachment and proper foundation was laid. State v. Warren, 33 S.W.2d 127; State v. Barker, 296 Mo. 56. (10) In absence of proper and timely objection to admission of evidence, no reversible error can be predicated. State v. Buckner, 80 S.W.2d 170. (11) The court properly modified defendants' Instruction 7. State v. Sykes, 248 Mo. 712. (12) The prosecuting attorney's argument is not preserved in the bill of exceptions, and the ruling of the trial court cannot be reviewed by this court. State v. Sherry, 64 S.W.2d 239; State v. Dalton, 23 S.W.2d 7; State v. Gould, 46 S.W.2d 890.

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

OPINION

COOLEY

Appellants were convicted of robbery in the first degree committed by means of a deadly weapon, a pistol. Each was sentenced to ten years' imprisonment in the penitentiary and both have appealed. They were charged and tried together below, filed a joint motion for new trial, which was overruled, and have filed a joint brief here on appeal.

The State's evidence tended to show the following:

J. F Ladd owned a service station on State Highway No. 25, about two and three-quarters miles west of Cardwell, in Dunklin County, at which gasoline was sold, also lunches, cigars, cigarettes, etc. It was kept open day and night. The robbery occurred about five o'clock Sunday morning, December 16, 1934, at which time two young men, Lester Stewart and Jethro Harrell, employees of Ladd, were in charge of the place and were alone there. Stewart stepped outside and about ten feet from the door, leaving Harrell asleep on a cot in a back room of the station. While Stewart was thus outside one of the robbers, identified as Ransom, approached, coming from behind a parked car or a pile of gravel, and, exhibiting a pistol, ordered Stewart to "stick 'em up." Ransom then directed Stewart to "march out toward the south," -- which was toward the rear of the station -- and compelled him to lie down. As Stewart was walking south he saw the other robber, identified as Johnson, approaching. After Stewart had lain down it appears he was raising his head, trying to get a view of his assailants, and Johnson said to him: "Get that God damn head down or I will bust you over the head with this." Johnson had a pistol in his hand. Ransom then went inside, waked Harrell, brought him out and compelled him to lie down beside Stewart. Then, while Johnson remained with Stewart and Harrell, "guarding" them and compelling them to keep their heads down, Ransom went inside and, as shown by subsequent examination, took from the cash drawers about $...