State v. Short
| Decision Date | 05 November 1935 |
| Docket Number | No. 34147.,34147. |
| Citation | 87 S.W.2d 1031 |
| Parties | THE STATE v. LEONARD SHORT, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. — Hon. Warren L. White, Judge.
SENTENCE OF GUILTY CORRECTED.
Sam M. Wear, F.H. McLaughlin and Fred Stewart for appellant.
Roy McKittrick, Attorney General, James L. HornBostel, Assistant Attorney General, and Nat W. Benton for respondent.
(1) There was substantial evidence offered to support the verdict. State v. Miller, 300 S.W. 766; State v. Henke, 313 Mo. 615, 285 S.W. 395. (2) The court did not err in admitting testimony as complained of in appellant's assignment No. 4. (a) The State is not confined to a categorical review of appellant's testimony, and the cross-examination of appellant as to whom he saw at the Gabriel Cafe was within the direct scope of the examination. State v. Gilmore, 81 S.W. (2d) 432.
Appellant was charged, by an information filed in the Circuit Court of Greene County, Missouri, with the crime of being an accessory before the fact to a robbery in the first degree, alleged to have been committed by means of a dangerous and deadly weapon.
Upon a trial appellant was convicted. The jury assessed the minimum punishment prescribed for the offense, that is, ten years' imprisonment in the penitentiary. The trial court, at the time of pronouncing sentence, assessed an additional two years' imprisonment.
[1] Appellant has not favored us with a brief. In his motion for new trial it was alleged that the evidence was insufficient to sustain the charge. Ben J. Harrison owned a number of grocery stores in the city of Springfield. Every evening the cash taken in at the various stores was delivered to the Model Bakery, Harrison's headquarters, and the morning following, at about nine o'clock, an employee of Harrison would take the cash to a bank for deposit. On October 18, 1933, the perpetrators of the robbery displayed weapons and forced the employee carrying the cash to enter a car. The messenger was forced to lie upon the floor of the car and was taken into a distant part of the city where he was relieved of about $1300 in cash, then released. Joe Morgan, self-confessed perpetrator of the robbery, and Frank Simmons, an accomplice, testified for the State. Morgan had served a number of terms in various penitentiaries and at the time of the trial was serving a twenty-year sentence in the Missouri penitentiary on a first-degree robbery charge. Morgan testified that he located in Springfield for the express purpose of making a living by perpetrating robberies. He confessed, while on the witness stand, of having committed five or six such crimes during the months of August, September and October, 1933. He detailed the circumstances of how he met appellant Short through one Dewey Gilmore. Gilmore also had a criminal record. [See State v. Gilmore, 336 Mo. 784, 81 S.W. (2d) 431.] He also testified at length how Short planned the robbery here in question. Morgan and Simmons both testified that Short informed them that he knew the manner in which the money was being handled by Harrison; that Short suggested that they look over the ground adjacent to the Model Bakery to acquaint themselves with the situation. Short was a wrestling promotor and Harrison was the secretary of the Athletic Commission. Short often visited Harrison's offices at the Model Bakery and transacted business with him in connection with athletic exhibitions. Appellant at various times obtained passes from Harrison for admission to wrestling and boxing bouts. This coincides with evidence, given by Morgan and Simmons, that Short informed them he knew the details of how the money was handled at the Model Bakery. Simmons testified that Short gave him, and others who were connected with the conspiracy, passes to wrestling bouts. A number of these conspirators were seen in attendance at these bouts. Simmons and Morgan testified that Gilmore, Louis Cook and Homer Hiett were also connected with the conspiracy to rob the Model Bakery; that the plans were first discussed in the month of August, 1933, but due to the fact that on a number of occasions certain members of the conspiracy were lodged in jail in connection with other crimes the robbery was postponed. The final plan, alleged to have been arranged by appellant, was, that Morgan and Cook were to drive one car and Simmons and Hiett another; that they were to be at the Model Bakery about nine o'clock and keep a lookout for the messenger with the money; that the messenger was to be picked up, placed in the car and relieved of the money. This plan was consummated on the morning of October 18, 1933. A police officer, Frank Pike, testified that shortly after the crime was reported he saw appellant, Simmons and Hiett together in a car. There was also evidence that Morgan and Short had planned to prevent a number of the conspirators from participating in the spoils. There are other facts in the record which tend to establish the guilt of appellant. In our opinion the facts related are sufficient to sustain the conviction.
[2] It is settled law that a defendant may be convicted on the uncorroborated testimony of an accomplice. In this case, however, there were many facts and circumstances which corroborated the evidence given by two accomplices who testified against appellant. Witnesses, not connected with the crime, had observed appellant in company with the various conspirators at certain points in the city, which evidence corresponded with that of the accomplices Morgan and Simmons.
[3] Appellant offered evidence, by a number of witnesses, tending to show that Morgan, the confessed perpetrator of the crime, was not in Springfield at the time the crime was committed. It was appellant's theory that Morgan and Simmons, to use his expression, had "framed him" and that they were testifying against him in the hope of receiving lighter sentences for this and other crimes of which they had been guilty. The State, having introduced substantial evidence in support of the charge, and the defendant substantial evidence of his innocence, it became a question for the jury. We are not authorized to disturb their finding. We may say in passing, that from the record we are of the opinion that the jury was justified in finding appellant guilty under the evidence.
[4] Appellant, in his motion for new trial, contended that the trial court erred in permitting the prosecuting attorney to cross-examine him upon a subject beyond the scope of the examination in chief. The particular matter referred to was, that appellant was asked to whom he had talked at the Gabriel Cafe on the morning of the robbery. Appellant had in minute detail explained his whereabouts on that morning and had mentioned the Gabriel Cafe. It is, therefore, apparent that the cross-examination was proper.
[5] Error was assigned because the trial court permitted the State to introduce evidence of statements, made by the conspirators, prior to the time the crime was committed. Appellant was not present when these statements were made. Such statements have been held to be admissible on the theory that where a conspiracy exists the statements of any member of the conspiracy may be shown against the others. [.] The testimony referred to was given by the wife of Frank Simmons. In the motion for new trial it was alleged that she was not a competent witness because a wife of a conspirator. No such contention was made during the trial and, therefore, there was no adverse ruling, by the court, of which appellant can complain.
[6] Appellant also complains, in his motion for new trial, that Joe Morgan was permitted to testify to the commission of other robberies in which appellant was alleged to have been a participant. The record discloses that this testimony was elicited from Morgan on cross-examination at the insistence of appellant's counsel and over the objection of the witness, Morgan. Note the following on cross-examination:
Later in the cross-examination we find:
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