State v. Stewart

• Decision Date: 05 March 1895
• Citation: 29 S.W. 986,127 Mo. 290
• Parties: The State v. Stewart, Appellant
• Court: Missouri Supreme Court

29 S.W. 986

127 Mo. 290

The State v. Stewart, Appellant

Supreme Court of Missouri, Second Division

March 5, 1895

Appeal from Jackson Criminal Court. -- Hon. J. W. Wofford, Judge.

Affirmed.

A. S Lyman for appellant.

(1) Instruction number 1 asked by the state may be carried as abstract law, but the evidence did not support it as given. There was no evidence that defendant took anything from Irvin, either by the means described in the instruction or otherwise; the instruction was therefore not warranted as given. Givens v. Van Studdiford, 4 Mo.App. --; State v Degonia, 99 Mo. 488; Green v. Railroad, 60 Mo 405; Conway v. Railroad, 24 Mo.App. 235; Willis v. Stevens, 24 Mo.App. 494; State v. Primm, 98 Mo. 368. (2) One of the material issues tried, and the proof of which was necessary, was the identity of the defendant with the person alleged to have aided and abetted the other. On this issue there was no instruction or direction given by the court at all, and hence instruction number 4, asked by the defendant, but refused by the court, should have been given, and the court's failure to give it was error. Beauchamp v. Higgins, 20 Mo.App. 514; Sheedy v. Streeter, 70 Mo. 679; Raysdon v. Trumbo, 52 Mo. 35; Cahn v. Reid, 18 Mo.App. 115; Fitzgerald v. Haywood, 50 Mo. 516; Cress v. Lockland, 67 Mo. 619; State v. Banks, 73 Mo. 592; Bishop v. State, 43 Tex. 402. (3) A new trial should have been awarded because of newly discovered evidence; it was cumulative but new and independent. Wilson v. Black, 41 Wis. 94; Galaworthy v. Town, 75 Wis. 24; Green v. Railroad, 38 Iowa 368; State v. Murray, 91 Mo. 95.

R. F. Walker, Attorney General, and Marcy K. Brown, Prosecuting Attorney, for the state.

(1) The indictment is sufficient and properly charged robbery in the first degree. (2) The objections made in appellant's brief to the instructions given by the trial court are frivolous and without force. (3) The instructions given by the trial court are in the form repeatedly approved by this court, and properly declare the law as to all the issues arising in the case. (4) Instruction number 4, asked by appellant and refused by the court, was properly refused; so much of said instruction as was not erroneous was amply covered by instructions numbers 1, 3, 4, 5 and 8, given by the court. (5) The alleged newly discovered evidence presented by defendant, in his effort to obtain a new trial, fails in every respect to meet any of the six requirements fixed by the decisions of this court for such evidence. It is not material, is but cumulative, and could not possibly have produced any different result. No proper diligence is shown, and its effort, even if true, would have been but to have intensified, in the minds of the jury, the fact of defendant's guilt. State v. Ray, 53 Mo. 345; State v. Woodward, 95 Mo. 131; State v. Crawford, 99 Mo. loc. cit. 80; State v. Musick, 101 Mo. loc. cit. 274; Cook v. Railroad, 56 Mo. 380; Snyder v. Burnham, 77 Mo. 52; State v. Smith, 114 Mo. 406; State v. Welsor, 117 Mo. 570; State v. Sansone, 116 Mo. 1.

OPINION

Burgess, J.

Defendant was jointly indicted with one Frank Foster, at the September term, 1893, of the criminal court of Jackson county, Missouri, for robbery of the first degree, committed upon one George Irvin. Upon a separate trial, defendant herein was found guilty, and his punishment assessed at five years' imprisonment in the penitentiary. From the sentence and judgment he prosecutes his appeal to this court.

On the night of the twenty-sixth of February, 1893, at about the hour of 10 o'clock, the prosecuting witness, George Irvin, was going west on Eighteenth street, in Kansas City, when he was assaulted by two persons, who, by force and violence, and by putting him in fear of some immediate danger to his person, took from him his watch, watch chain, money to about the amount of $ 1.50, a trunk key, pocket knife and a short lead pencil. The night was light, the moon shining brightly. At the time of the robbery, Irvin did not recognize either of his assailants, nor did he see either of them for about two weeks afterward, when he saw and recognized defendant Stewart as one of the parties who stood in front of him with a pistol presented at him while the other one robbed him of the articles before mentioned. Stewart was then in custody of the city officers, to whom Irvin had given information of the offense, a description of the persons who assaulted him, and after he had been informed that they had under arrest a person suiting the description thus given. The defence was an alibi.

Defendant's first contention is that the court committed error in giving the first instruction on the part of the state, which told the jury that, if the defendant, in and upon the witness George Irvin, did make an assault and any of the articles described in the indictment of any value whatever from the person, and against his will, then and there, by putting him in fear of some immediate injury to his person, feloniously did rob, steal, take and carry away, they would find him guilty. The objection urged is that, as the evidence showed that defendant himself took none of the articles from the person of Irvin, although taken by another person, with his assistance, and while defendant held a pistol upon him, there was no evidence upon which to predicate it, but this contention is not borne out by the evidence, which shows that defendant and another robbed Irvin. They were both principals, and the acts of the person engaged with him in taking from his person his property in perpetration of the crime, were as much defendant's as if done by his own hands. The same may be said with respect to the objections urged against the third instruction given on behalf of the state.

The instructions were unobjectionable, and presented every phase of the case fairly to the jury. They were certainly as favorable to the defendant as he could hope for or expect, and were well warranted by the evidence.

The vital question in the case is with respect of the action of the court in overruling defendant's motion for a new trial upon the ground of newly discovered evidence. Upon this point the motion with reference to the trunk key and the small piece of lead pencil which were introduced in evidence against the defendant, and which Irvin testified were his, and that they were taken from him by his assailants at the time of the robbery, and which one of the witnesses on the part of the state, Baldwin, a policeman, testified that he found upon the person of defendant, on searching him, shortly after his arrest, is of the most importance.

In support of the motion defendant introduced his own affidavit, and, in addition thereto, that of one Frank E. Snow, which is as follows:

"I am and have been for nearly four years a policeman of Kansas City, Missouri, and have for said period been appointed and detailed as property clerk, in which capacity it is and has been my duty to receive all articles and property...