State v. Scobee

• Decision Date: 28 September 1932
• Docket Number: No. 31318.,31318.
• Citation: 53 S.W.2d 245
• Parties: THE STATE v. TOM SCOBEE and RAYMOND MANNING, Appellants.
• Court: Missouri Supreme Court

53 S.W.2d 245

THE STATE v. TOM SCOBEE and RAYMOND MANNING, Appellants.

No. 31318.

Supreme Court of Missouri, Division Two.

September 28, 1932.

Appeal from Knox Circuit Court. — Hon. Paul D. Higbee, Judge.

AFFIRMED.

F.E. Robinson and Murrell & Murrell for appellants.

(1) The verdict of the jury against each of the defendants was the result of prejudice and passion and this court should interfere and reverse, or reverse and remand the judgment of the trial court. State v. Harmon, 296 S.W. 396; Price v. Evans, 49 Mo. 396; State v. Primm, 98 Mo. 368. (2) Instruction 1 is erroneous for the reason that is refers the jury to the information (not the amended information) to ascertain the amount of money and what personal property defendants were charged with taking from William Eyler. This information was not before the jury and they could not know the nature of the property alleged to have been taken. (3) Error was committed by the court in giving Instruction 8 on behalf of the State. The effect of this instruction is to tell the jury that they should punish each of the defendants separately regardless of whether or not they found both or either guilty. The vice of this instruction is not cured by Instruction 3 given on the part of the State. If Instruction 3 is a correct instruction then Instruction 8 is in conflict with it and is misleading. The court will note that the State's Instruction 8 does not direct the jury that they could find both or either defendants not guilty. (4) Instruction 6 is erroneous because it combined the two defendants and did not separate them so that the jury could find that it had a reasonable doubt as to the guilt of one or either of the defendants. The court should have instructed the jury that if it had a reasonable doubt of the guilt of either defendant then the jury should acquit such defendant. State v. Craft, 23 S.W. (2d) 186; State v. Lambert, 218 Mo. 705, 300 S.W. 707.

Stratton Shartel, Attorney-General, and Denton Dunn, Assistant Attorney-General, for respondent.

(1) The court cannot consider uncertified bills of exceptions. This court has repeatedly and invariably held that it cannot consider purported bills of exceptions filed herein without certification thereof by the clerk of the circuit court, as required by law. The following cases settle this point with such precision and exactitude that further discussion would be presuming on the court's time. State v. Baty, 166 Mo. 561, 66 S.W. 428; State v. White, 315 Mo. 1279, 288 S.W. 19; State v. Kelsay, 18 S.W. (2d) 491; State v. Miller, 322 Mo. 1201, 18 S.W. (2d) 492. (2) The information, verdicts and judgment are valid. The court, having leniently to the appellants, overruled respondent's motion to dismiss by reason of their delay in actual filing of any transcript, therefore the record proper is for review, although matters of exception are not under the transcript, of record proper only, duly certified and filed. The amended information on which the trial was had is ample in form and substance to charge robbery in the first degree by means of a dangerous and deadly weapon, under Sections 4058 and 4061, R.S. 1929, and the verdicts are findings of guilty of robbery in the first degree as charged in the amended information, assessing a penalty authorized by Section 4061 for either kind of first degree robbery. State v. Albritton, 40 S.W. (2d) 676; State v. Currier, 225 Mo. 642; State v. Flynn, 258 Mo. 211.

ELLISON, J.

The defendants appeal from a conviction of robbery in the Circuit Court of Knox County. The punishment of both was fixed by the jury at ten years' imprisonment in the penitentiary. Their defense was an alibi supported by strong evidence, particularly as to the defendant Manning. The principal assignment of error urged here is that the verdict was so much against the weight of the evidence as to indicate passion and prejudice. Complaint is made also of certain instructions.

The prosecuting witness was William Eyler, a man operating a taxicab at Baring in Knox County. He said that about midnight of December 31, 1929, the appellant Scobee was brought to his hotel room in Baring by one of the hotel employees. There was a light in the hall and he turned on the light in his room, so he got a good look at Scobee. The latter engaged the taxicab to take him and his companion, the appellant Manning, to Edina, the county seat. Eyler dressed and followed Scobee downstairs to the restaurant where they were joined by Manning. Scobee got into the taxi first, in the back seat; Manning sat in front.

As they were driving out of Baring one of the two defendants said something about their having got off the train, referring to an eastbound Santa Fe passenger train which passed through Baring shortly after eleven P.M. Eyler inquired if anybody else had come in on the train. Scobee or Manning answered there was one other fellow; and about that time according to the testimony of the witness. Manning stuck a gun in his face. Eyler offered resistance and seized the gun and they told him they would blow his head off. They compelled him to stop the automobile and get out. While Manning kept him covered with the revolver Scobee searched him and tied his hands and stuffed a handkerchief in his mouth. Finding only $4 on his person, one of the defendants said to him "you ____ ____ we ought to kill you! Only you have got this money — you have either left it at home or done something with it." Eyler told them he would not be carrying much money at that time of night.

After they had tied Eyler's hands and gagged him the two defendants got back in the car and compelled Eyler to get in with them. Manning took the wheel and Eyler sat beside him. They drove about half way to Edina and turned off on a side road, driving down about a quarter of a mile where they stopped the car and compelled Eyler to get out again. They took him into a field some 250 yards and produced from a valise an old blanket which they spread upon the ground, and required Eyler to lie down on it. Then they tied his feet together, tied his feet back to his hands and put another handkerchief in his mouth. They also took off his shoes and left him lying on the ground, departing in his automobile, which was a 1929 model Ford. They left the grip, the rope and blanket and an old coat. These were recovered by the officers of Knox County later.

Eyler remained lying helpless in the field for some two and a half hours. In the meantime he had succeeded in getting the gag out of his mouth and attracted the attention of a man named Lincolnfeller about 2:30 in the morning, who released him.

He next saw the defendants five days after the robbery at the police station in Fort Madison, Iowa. By some means or other he had been informed the men who had robbed him might be found there. He drove up to Fort Madison, which is about 100 miles from Baring, with the sheriff of Knox County and a young man named Harry Simpson. The Fort Madison police brought the defendants Scobee and Manning into the police station. Eyler says he recognized the appellant Scobee at once as the man who had come to his hotel room and engaged the taxi. He admitted he did not get a good look at Manning's face at the time of the robbery because his hat was pulled down, but identified him by his "make-up" and voice. On the witness stand Eyler pointed to the appellant Scobee as he sat in the courtroom and positively identified him as one of the robbers and he furthermore declared he was positive Manning was the man who had the revolver in the automobile that night. The young man Simpson on this occasion and in Eyler's presence identified Scobee and Manning as two strangers he had seen in Callahan's barber shop at Baring on the afternoon preceding the robbery.

On cross-examination Eyler was asked to describe the dress of the robbers. He said Scobee had on overalls and a jumper and dark cap. When he talked to him in the hotel they were standing within four feet of each other. Manning, he said, was wearing a dark coat and hat and according to his best recollection a dark pair of trousers. The witness' Ford automobile was recovered in Kansas City on January 7.

Orville Marget, a garage keeper in Edina, said he was requested by telephone to come to his garage on January 1 about 1:30 A.M., where he sold some gasoline to two men in a Ford car. This was about an hour and a half after the robbery. He identified the defendant Scobee as the man who bought the gasoline. Scobee was waiting at the garage when the witness drove up. There was a light inside and Scobee went into the office to pay for the gas. The witness said there was another man with Scobee at the time but he didn't see his face. The other man was a little shorter than Scobee. The witness said the car driven by the two men was a Ford with the right hind fender bent. He further stated he had recently seen the car of the prosecuting witness Eyler and that it was the same car the two men had that night. On cross-examination it was shown the witness in his testimony at the preliminary hearing had said he did not pay much attention to the kind of clothing worn by the two men, and in general that his identification of them was more or less indefinite.

W.F. Burns was a deputy sheriff of Knox County and night watchman in the town of Edina. He declared he saw both defendants in Edina late the night of Tuesday, December 31, 1929, when the robbery occurred. He was standing on the street corner near the bank when they came up. Scobee went to Zugg's restaurant to do some telephoning while Manning waited on the corner. Presently Scobee returned and reported Marget, the garage keeper, had consented to come up town and let him have some gasoline. Both defendants went to the garage and the witness followed and was present when Marget sold them the gasoline. He noticed their Ford automobile. There was a dent in the right hand fender and the chains were strung across the back....