State v. Scott

• Citation: 58 S.W.2d 275,332 Mo. 255
• Decision Date: 03 March 1933
• Docket Number: 32280
• Parties: The State v. Fred Scott, Appellant
• Court: United States State Supreme Court of Missouri

58 S.W.2d 275

332 Mo. 255

The State v. Fred Scott, Appellant

No. 32280

Supreme Court of Missouri

March 3, 1933

Appeal from Pemiscot Circuit Court; Hon. Will H. D. Green Judge.

Affirmed.

McKay & Peal for appellant.

The court erred in the admission of testimony on behalf of the State. (a) The defendant was forced to say whether or not he was up at the place of the crime with his codefendants, which did not traverse his examination in chief. State v Sharp, 233 Mo. 269; State v. Mitchell, 229 Mo 683; State v. Wilson, 223 Mo. 173; State v. Lovitt, 243 Mo. 510. (b) The court erred in permitting the State to prove the general reputation of the defendant for morality, without fixing the time and without calling the attention of the witnesses to the particular trait of character involved. State v. Archie, 301 Mo. 408. (c) The court erred in permitting the witness Eli Shamski to answer the question: "were you acquainted with his general reputation in the community where he lives for morality?" State v. Archie, 301 Mo. 407. The court erred in permitting the State to read to the jury the application of the defendant and his codefendants jointly for a continuance. Only such part of such application as might impeach him or constitute an admission against interest was competent for any purpose whatever. Fulton v. Nichols, 202 Mo. 309; Prentiss v. Illinois Ins. Co., 225 S.W. 695. Here the court not only refused to rebuke counsel for asking a question in the form of a statement getting to the jury the very evidence he sought to elicit from the witness, but took part himself in questioning the witness by asking over and over the same questions in such manner as to indicate to the jury that the court was of the opinion that the witness knew the fact sought to be elicited and to coerce the witness into stating such fact. This conduct was prejudicial to the right of the defendant. McLean v. Thorp, 3 Mo. 215; Sparks v. State, 59 Ala. 82; Sharp v. State, 51 Ark. 147; Harris v. State, 61 Ga. 359; Poe v. Bernstein, 250 Ill. 63.

Stratton Shartel, Attorney-General, and Silas E. Garner, Special Assistant Attorney-General, for respondent.

(1) Defendant assigns for error that the evidence adduced by the State is not legally sufficient to sustain the verdict. We think it is. 3 Kelly's Criminal Law and Practice, p. 322, sec. 380; State v. Hyde, 234 Mo. 200, 136 S.W. 316. (2) Appellant, in his sixth assignment, complains and says that the court erred in permitting the State to prove his general reputation for morality, without calling the jury's attention to any special trait of character. 3 Kelly's Criminal Law and Practice, p. 325, sec. 381. (3) Appellant asigns as error the fact that the information does not charge any offense known to the law of the State of Missouri, or the common law. We think it does sufficiently charge the offense of assault with intent to kill, but Count Two may not sufficiently charge the offense of assault with intent to rob. Count One, assault to kill, was dismissed, and the case went to the jury on the second count, assault to rob, and the evidence offered which tended to prove assault to kill, is not sufficient to prove assault to rob. Kelly's Criminal Law and Practice, pp. 6, 506, 561, 733, 764, secs. 577, 637, 834, 863; State v. Lourie, 12 S.W.2d 43; State v. Davis, 6 S.W.2d 609; State v. Terry, 19 S.W. 206.

OPINION

Ellison, P. J.

The appellant and three other defendants (as we shall call them) were jointly charged by information with attempting to rob one Mitt Robinson in New Madrid County. They disqualified the regular judge of the circuit under Section 3648, Revised Statutes 1929, and then obtained a change of venue to Pemiscot County in the same circuit on account of alleged prejudice of the inhabitants of New Madrid County. A severance was then taken. The appellant was tried three times. Twice the jury failed to agree. At the third trial he was convicted and his punishment assessed at two years' imprisonment in the penitentiary.

The evidence for the State was that about six o'clock in the evening of December 29, 1929, four men, or "high-jackers" as one witness called them, came to a small room at the rear of a restaurant in Marston owned by the prosecuting witness, Mitt Robinson, where a crap game was in progress. They had handkerchiefs tied over the lower part of their faces and their hat brims were pulled down. One of them said "Stick 'um up." Robinson was standing at the crap table on which was some $ 16 or $ 17 in silver money. He picked it up and put it in his pocket. One of the four robbers, a tall man, had a pistol and fired three shots. The third shot struck Robinson in the chest and he fell. The robbers then fled. Robinson was unable to identify any of them, except to say two of them were about the same size as the appellant and another of the defendants.

Five men were in the room at the time of the attempted holdup. One of these, Charles O'Bannon, said he had entered the restaurant just a few minutes before. As he passed up the street he saw the appellant standing on the sidewalk near the bank corner with another of the four defendants. They were close to a Ford sedan, the engine of which was running. The other two defendants also were there, one of them sitting in the car. O'Bannon testified that when the robbers came into the room where the crap game was in progress two of them had revolvers, fired and fled. He swore he was standing leaning against the door frame; that one of the two robbers was within eighteen inches of him; and that he recognized the man as Fred Scott, the appellant. He further said he left the scene of the shooting immediately and when he got out on the street the Ford sedan and the four men he had seen by it just a few minutes before, were gone. He was subjected to a lengthy cross-examination which retraced his testimony in previous trials. The sum total of this was that he was able to recognize the appellant, notwithstanding his mask, by his clothes, size, nose, hair and some freckles, pimples or pock marks on the back of his neck and cheeks.

O'Bannon further testified he had seen the four defendants that day twice before, though he did not know their names; once about 4:30 in the afternoon as they were going north along the highway, and another time that morning. Jesse McAnally, a constable in New Madrid County, said he saw them on the highway about three miles north of Marston close to four o'clock in the afternoon. Harry Friend, who had known the defendants ten or fifteen years, testified he saw them in Marston about eleven o'clock in the morning on the day of the attempted robbery. That evening at dusk or dark he saw three of them, including the appellant, near a Ford car parked at the bank corner, with engine running. One of the defendants was in the car. When he passed that way a few minutes later they and the car were gone. All this closely corroborated the testimony of O'Bannon, summarized above.

The foregoing was the State's case in chief. The appellant's defense was an alibi. He did not deny the shooting and attempted robbery had occurred. On the contrary he used as witnesses two of the participants in the crap game, Buster Conners and Marvin Simmons, who agreed substantially with the story told by the State's witnesses except that they said they were unable to identify the robbers because of the handkerchiefs tied well up over their faces. There were also some small discrepancies as to whether the appellant wore a hat or cap, and as to the position of the State's witness O'Bannon in the room at the time of the shooting. Both these defense witnesses admitted, however, that one of the robbers was about the size of the appellant.

On the alibi, the appellant's brother-in-law, sister and mother testified he slept at home in Caruthersville, thirty miles from Marston, the Saturday night before the attempted robbery, got up about noon Sunday, ate dinner, and was gone during the afternoon. The family had supper that evening a few minutes after six. Before all had finished the meal the appellant came in and ate. After that he went with them to a picture show. One witness, Paul Disbennett, said he saw the appellant up town in Caruthersville about 5:30 or 6 p.m. the evening of the shooting and the two walked home together. This witness admitted he had never testified at any of the previous trials of the case. R. E. Lonon, a brother of Tromo Lonon, one of the four defendants, testified his brother had never owned a green Ford car but did have a dark blue one -- the State's evidence had been that the car in or with which the four defendants had been seen during the day was a green Ford sedan owned by Tromo Lonon.

The appellant's direct examination was practically limited to a denial of participation in the attempted robbery. He said he had never made an assault on or attempted to rob the prosecuting witness Mitt Robinson and had never been present when any one else did, either on December 29, 1929, or at any other time. On cross-examination he said he was not at the scene of the shooting or in Marston on the day of the robbery.

For the State, in rebuttal four witnesses were produced who swore the general reputation of the appellant for morality in the community where he resided at and prior to the date of the attempted robbery was bad. Other facts will be noted as necessary in the course of the opinion.

I. It is assigned that the information is fatally defective. No complaint on this ground was made before the trial but the point is raised in the motion for new trial. The information was in two counts, the first charging assault with intent to kill and the second attempted robbery. The first count was abandoned and the cause tried on the second count. It is as...