State v. Smith

• Citation: 212 S.W.2d 787,358 Mo. 1
• Decision Date: 12 July 1948
• Docket Number: 40387
• Parties: State v. William Clinton Smith, Appellant
• Court: United States State Supreme Court of Missouri

212 S.W.2d 787

358 Mo. 1

State v. William Clinton Smith, Appellant

No. 40387

Supreme Court of Missouri

July 12, 1948

Appeal from Circuit Court of City of St. Louis; Hon. Robert L Aronson, Judge.

Affirmed.

Geo. L Vaughn for appellant.

(1) Evidence concerning a separate and distinct offense which is so remote in time and place as not to make it a part of the res gestae, or which is not necessary for the purpose of establishing the identity of the defendant, or to show knowledge, intent, malice, or motive, is irrelevant and inadmissible on the prosecution of a particular crime, and it is prejudicial error for the court to admit such evidence. 16 C.J., secs. 1115, 1132; State v. Hyde, 136 S.W. 316. (2) It was prejudicial error for the court to permit officer Wallace to testify concerning the possession of a knife by the defendant and a pistol by Henry J. Schneider at the time of their joint arrest which took place more than three miles distant from the scene of the crime charged and more than three hours after the same is alleged to have been perpetrated, none of the exceptions to the general rule being present. Likewise, the testimony describing the appearance condition and other circumstances surrounding the possession of said weapons, and their admission into evidence for examination by the jury constituted error on the part of the court which was prejudicial to the defendant. State v. Banks, 167 S.W. 505; State v. Hyde, supra. (3) Instruction 2, given by the court, and which was intended to cover the entire case and authorized a verdict of guilty on the facts therein stated, is erroneous, because it ignores two of the main points of defense which the evidence in behalf of the defendant presented, towit, mistake in the identity of the person who committed the robbery as being another person than the defendant, and the alibi as shown by said testimony. It did not cover or instruct the jury as to the whole law of the case by reason of said omissions, and did not require the jury to find that the person present and participating in the robbery was the defendant, and was, therefore, prejudicial. Sec. 4070, R.S. 1939; State v. Hutchinson, 111 Mo. 257; State v. Weinberg, 150 S.W. 1069; State v. Mills, 179 S.W.2d 95; State v. Aitkenna, 179 S.W.2d 84. (4) It was prejudicial error for the court to refuse to give Instruction C which was proffered by the defendant on the defense of the alibi testified to by his witnesses. It correctly stated the principles of law in relation thereto, particularly embracing the requirement of telling the jury it was necessary to find that the defendant was present at the time and place of the commission of the crime charged, which issue had been omitted from the instruction on alibi given by the court; and, even if the requested instruction was erroneous, upon its being presented, it became the duty of the court to make whatever corrections or modifications he deemed proper and give the same, either in the proffered instructions or in the one which he did give. The instruction given by the court did not comply with the settled approved alibi instruction. State v. Hubbard, 171 S.W.2d 701; State v. Hilderbrand, 225 S.W. 1006; State v. Burnett, 188 S.W.2d 51. (5) It was prejudicial error for the court to refuse to give defendant's proferred Instruction D, which was a precautionary instruction on the question of identity, particularly so, in view of the conflict in the state's testimony, the condition of the weather and the lack of opportunity for observing the persons committing the robbery, and the evidence tending to establish and an alibi. And, if said instruction was not in proper form, it was the duty of the court to give a correct instruction in writing covering the issue therein dealt with. 16 C.J., sec. 2354; and cases cited under Note 17; State v. Lammert, 300 S.W. 707; State v. Duncan, 80 S.W.2d 149; Briscoe v. State, 263 S.W. 573; State v. Welch, supra.

J. E. Taylor, Attorney General, and Aubrey R. Hammett, Jr., Assistant Attorney General, for respondent.

(1) The verdict is supported by substantial evidence. State v. Moore, 339 Mo. 52, 95 S.W.2d 1167; State v. Biswell, 352 Mo. 698, 179 S.W.2d 61; State v. Gregory, 339 Mo. 133, 96 S.W.2d 47. (2) The court in giving Instruction 1 did not commit reversible error. State v. Vigus, 66 S.W.2d 854; State v. Adams, 318 Mo. 712, 300 S.W. 738. (3) The court committed no error in refusing defendant's requested instruction on alibi since the court properly instructed on alibi, and when considered along with other instructions given by the court, is sufficient. State v. Mangercino, 325 Mo. 794, 30 S.W.2d 763; State v. Kowertz, 324 Mo. 748, 25 S.W.2d 113; State v. Brooks, 220 Mo. 74, 119 S.W. 353; State v. Fike, 324 Mo. 801, 24 S.W.2d 1027. (4) The court properly refused Instruction D offered by the defendant. If the court had given said instruction, it would have been a comment on the evidence. State v. Kowertz, 324 Mo. 748, 25 S.W.2d 113; State v. Edelen, 228 Mo. 160, 231 S.W. 585; State v. Murphy, 29 S.W.2d 144, 325 Mo. 537; State v. Hampton, 172 S.W. 1. (5) The defendant failed to object to the introduction of the evidence, the knife and pistol used by the defendant and his companion, and therefore, it is too late to raise such objections for the first time in his motion for new trial. State v. Pierson, 337 Mo. 475, 85 S.W.2d 48; State v. Revard, 341 Mo. 170, 106 S.W.2d 906; State v. Matkins, 326 Mo. 1072, 34 S.W.2d 1.

OPINION

Douglas, P.J.

William Clinton Smith was sentenced to ten years in the penitentiary for first degree robbery for taking a wallet while armed with a knife from David Matthews. He had a fair trial, and the sentence must be affirmed.

Matthews was walking along Warne Avenue in St. Louis between 12:15 a.m. and 12:30 a.m. on February 16, 1945. As he approached the alley between Kennerly and Lincoln Avenues he noticed two men standing in the mouth of the alley under a street light. He passed them. After he passed them one of them walked by him, turned and pushed a gun in his stomach and demanded his money, threatening to shoot him. The other, identified as the defendant, stepped behind him and put a knife against his neck, warning him that if he moved he would cut his head off. Defendant took Matthews' wallet from Matthews' hip pocket. Matthews stepped forward and struck the man with the gun. As he did defendant lunged at him and cut the lobe of his ear with his knife. Then defendant and his companion ran away.

Matthews called the police, reported the incident and described his assailants. Their descriptions were broadcast over the police radio.

At about 3:00 a.m. of the same morning a police officer recognized the two men as they were walking east on West Pine Boulevard near Sarah Street, about three miles from the place of the robbery. As they approached the officer one threw away a revolver, the other, the defendant, an open knife. They were arrested, and taken to the police station where Matthews, at about 4:00 a.m., identified them as the robbers who had held him up.

Matthews had reported to the police the gun used in the holdup was a 32 calibre nickel plated revolver. The gun recovered by the police was a nickel plated revolver with a bullet in the cylinder under the firing pin.

Matthews testified he had a good look at the two men. Because of the lateness of the hour he had looked at them intently. Although the night was misty the street light at the mouth of the alley provided sufficient light for him to see them clearly. When the first one stepped past him Matthews turned his head momentarily and saw defendant approaching with the knife.

The evidence on the identification of defendant as the robber with the knife was sufficient to support the verdict.

Defendant offered an instruction which singled out the question of the identification of defendant.

It stated: "The court instructs the jury that, if you find and believe from the evidence in this case that David Matthews was assaulted and robbed on the 16th day of February, 1945, then it will still be necessary for the jury to determine that this defendant is the person who committed said assault and robbery, if you so believe, and in...