State v. Rowe
| Decision Date | 29 May 1917 |
| Citation | 196 S.W. 7,271 Mo. 88 |
| Parties | THE STATE v. DAVID ROWE and ROE SANDERS, Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.
Affirmed.
James E. Dee for appellants; W. T. Rutherford of counsel.
(1) The trial court erred in permitting the prosecuting witness Graham, over defendants' objection, to state why he had not been employed in the last seven months before the trial and that three weeks after the robbery he was shot in the saloon, and that that was the reason why he had not been employed and had been in the hospital for four months. (2) The trial court erred in giving instruction telling the jury that a defendant is a competent witness in his own behalf and his testimony should be weighed by the same rules that govern the testimony of other witnesses, with the exception that in passing upon it they should take into consideration the fact that the defendant was the defendant in the case and the interest he had in the result; because same is a comment on the weight of the evidence. State v. Mintz, 245 Mo. 542; State v. Evans, 267 Mo. 163; State v. Shaffer, 253 Mo. 338; State v. Finkelstein, 269 Mo. 612. (3) Said instruction is also bad because the defendant Roe Sanders did not testify, and Sec. 5243, R. S. 1909, prohibits the court or jury before whom the trial takes place to consider the same or refer to the same. (4) Because the court should have granted the defendants a new trial after it discovered that the juror, Frederick Klug, although he had been challenged by the defendant, had been allowed to remain on the jury.
Frank W. McAllister, Attorney-General, and S. P. Howell, Assistant Attorney-General, for the State.
(1) The court did not err in permitting the State to elicit from the prosecuting witness what his actions had been since his release from the penitentiary. State v. Spaugh, 200 Mo. 598; State v. Starr, 244 Mo. 175. Moreover, the objection to the admission of this testimony was insufficient to preserve the error, if any, for review here, for the reason that no specific ground for its inadmissibility was assigned. State v. Wellman, 253 Mo. 302; State v. Castleton, 255 Mo. 201; State v. Kapp, 187 S.W. 1178. (2) Under the condition of the record in the case at bar, the objection to the sufficiency of instruction on defendant's credibility as a witness is not properly saved for review. Sec. 5285, R. S. 1909. State v. Finklestein, 269 Mo. 612; State v. Levy, 262 Mo. 190; State v. McBrien, 265 Mo. 594; State v. Taylor, 183 S.W. 301; State v. Gifford, 186 S.W. 1060; State v. Gilbert, 186 S.W. 1003; State v. Kapp, 187 S.W. 1180. Sec. 5312, R. S. 1909. The following authorities announce the rule which obtains in civil cases. Sec. 2022, R. S. 1909; Wampler v. Railway, 190 S.W. 908. (3) Where it does not appear from the record that the rights of appellant have been prejudiced by a failure to comply with the statute in selecting the jury panel, the finding of the lower court will not be disturbed on appeal. State v. Ward, 74 Mo. 256; State v. Gleason, 88 Mo. 582; State v. Riddle, 179 Mo. 293; State v. Jackson, 242 Mo. 420; State v. Shoemaker, 183 S.W. 324.
The defendants were tried jointly in the circuit court of the city of St. Louis for the crime of robbery in the first degree, and being by the jury found guilty had assessed against each of them as punishment imprisonment in the penitentiary for five years. After the conventional motions they have perfected a joint appeal. With the two above named defendants one George Warrance was originally charged in the same information, but obtained a severance, and we need no longer trouble ourselves with his connection with the case.
The facts shown on the part of the State are brief, as are likewise those offered by defendant. Howard Graham, the man averred in the information to have been robbed, was a bartender in charge of the saloon of one John Miller, which saloon was situate on the northeast corner of Twentieth and Olive streets in the city of St. Louis. Miller, the owner of the saloon, was absent at the time the robbery occurred. At about eight o'clock on the evening of April 1, 1915, the two defendants and said Warrance went to Miller's saloon and endeavored to borrow the sum of five dollars from Howard Graham. The latter refused to lend them this money, but at their solicitation gave them a drink of liquor of some sort, and thereupon the three left the saloon. Some fifteen or twenty minutes later the defendants and said Warrance returned to the saloon and defendant Rowe drew his revolver, presented it at Graham and ordered him to throw up his hands. At this time there were besides Graham, three other men in the saloon, who also at the command of Rowe threw up their hands. Defendant Rowe then at the point of his revolver compelled Graham and one Sherman Holman, who was one of the customers in the saloon at the time of the robbery, to go down a stairway into the basement of the building. Steven Sandothe, another of the customers in the saloon at the time of the robbery, ran out at the side door, apparently while defendants and Warrance were disposing of the others, and saw no more of the robbery. Gus Bloomer, the third and last of the three customers, was compelled to enter the ice box, from which box through the glass window thereof, he saw some one of the party taking money out of the cash register.
The proof shows that all of the money in the cash register, amounting to some $ 24.60, was taken by some one of the persons engaged in the robbery. As soon as Graham heard a noise which indicated that the cash register was being closed, he came out of the basement and released Bloomer from the ice box. The defendants had left the saloon by this time. The police were informed of the robbery and in the course of an hour or more arrested defendants and brought them to Miller's saloon where they were identified by Graham. In the course of this identification Rowe, applying to Graham an abusive epithet, said to him that he "had a hell of a nerve to make any holler." The defendants were positively identified by Graham, the man robbed, and by Holman, one of the persons in the saloon at the time of the robbery. The witness Sandbothe is not positive in his identification.
The only witnesses produced in behalf of defendants were Officer Gunn and defendant Rowe himself. Defendant Sanders did not testify. No evidence of importance was elicited from Officer Gunn except that he stated he found no pistol on defendants when he arrested them, but he did not remember how much money they had. He corroborated the conversation between defendant Rowe and Graham, which we set out above, and the fact of the identification of the defendants by Graham. Defendant Rowe denied substantially every fact stated by the witnesses for the State. He admits that he came into the saloon on the night of the robbery, but he says that he did so for the purpose of buying a drink and that while doing so an argument arose between Graham and some unknown person; that Graham reached for a pistol and he (defendant) ran out the front door. There is no contention made, however, as to the sufficiency of the evidence, nor could there be upon the facts shown in proof.
Such further facts as transpired upon the trial and which form the basis of the several contentions urged by defendants for reversal, will be set out when we come to express our views.
I. Defendant complains for that the State elicited from the witness Howard Graham the fact that he had been shot some weeks after the commission of the robbery here in question and so desperately wounded as to cause him to be confined in a hospital for four months. This statement was made by the witness upon his re-direct examination after the defendant had drawn from the witness in cross-examination the admission that he had served a term in the penitentiary for robbery, and after the witness had been asked how many men he had killed; how many men he had robbed; if he were not a dope fiend; if he had not cheated one Holman out of five hundred dollars, and whether his employer knew that he (the witness) was an ex-convict when employment as a bartender was given him. Upon the re-direct examination of the witness the State evidently for the purpose of rehabilitation, asked the witness briefly as to his course of life since his admitted conviction for robbery -- which occurred in 1905. The witness said that he had never been in trouble since such conviction and had been steadily employed except for the seven months preceding the trial. He was then asked by the State why he had not been employed also during the latter period. He answered that he was shot through the left arm and right lung three weeks after the robbery and confined as a result in a hospital for four months. When the question was asked which elicited the alleged harmful answer, the only observation made by defendants' counsel was that, "I think it is incompetent, because these defendants were in jail at that time." This statement, it will be noted, was not an objection. Subsequently a motion to strike out was made, but no reasons were given for such motion beyond the alleged facts that the answer of the witness was incompetent, irrelevant and immaterial and had no bearing on the case. Clearly the record discloses, under the authorities, no sufficient preservation of the point for our review. This view renders unnecessary any discussion whether the defendants, admittedly in jail at the time thereof, could in any event have been hurt by the admission of this statement; as also whether the question was not justified on the theory of rehabilitation, in view of the cross-examination of defendants'...
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