State v. Swisher

• Decision Date: 31 January 1905
• Citation: 84 S.W. 911,186 Mo. 1
• Parties: STATE v. SWISHER.
• Court: Missouri Supreme Court

84 S.W. 911

186 Mo. 1

STATE v. SWISHER.

Supreme Court of Missouri, Division No. 2.

January 31, 1905.

CRIMINAL LAW—CHANGE OF VENUE—APPLICATION —AFFIDAVITS—PREJUDICE OF JURORS— ROBBERY — EVIDENCE — SUFFICIENCY — INSTRUCTIONS — CONSTITUTIONAL LAW—ARGUMENT OF COUNSEL — COMMENT ON DEFENDANT'S FAILURE TO DENY GUILT.

1. It was not error to refuse a change of venue in a criminal case where the application was not supported by the affidavits of defendant and two witnesses, as required by statute.

2. The fact that the panel which was selected to try accused was a part of the same panel which had convicted his codefendant was no ground for a change of venue.

3. Where, on a prosecution for robbery, the prosecuting witness positively identified accused, but his father and sisters testified to facts establishing an alibi, an instruction that, if the jury believed any witness had knowingly and willfully sworn falsely to any material fact, then the jury were at liberty to disregard the whole or any portion of his testimony, was not erroneous.

4. On a prosecution for robbery, evidence held sufficient to sustain a finding that accused was guilty.

5. Where, on a prosecution for robbery, the defense was that accused was at home with his family at the time of the crime, it was not error to permit the state, in its case in chief, to prove defendant's voluntary statement that he was in a poolroom at the time of the robbery; the court and jury having been previously advised by defendant's counsel as to the nature of the defense.

6. Where, on a prosecution for robbery, the defense was that defendant was at home with his family at the time of the crime, it was not error for the circuit attorney, in his argument to the jury, to call their attention to the fact that at the time defendant was arrested he stated, in answer to a question, that at the time of the crime he was in a poolroom.

7. Rev. St. 1899, § 2638, forbids any reference by the prosecuting attorney to the failure of an accused to avail himself of his right to testify. Held, that it was error for the prosecuting attorney, in his argument to the jury, to refer to the fact, that accused, when arrested by the officer and charged with the crime, remained silent.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Joseph Swisher was convicted of robbery in the first degree, and he appeals. Reversed.

Lee W. Hagerman, for appellant. E. C. Crow, Atty. Gen., and C. D. Corum, for the State.

GANTT, J.

On an indictment for robbery in the first degree, preferred by the grand jury of the city of St. Louis on December 22, 1903, the defendant was convicted, and sentenced to the penitentiary for 10 years. From that sentence, he appeals.

James Mosier, the prosecuting witness, testified that he reached St. Louis on the 9th day of December, 1903, at 8:30 o'clock in the evening of that day, and went to 1214 North First street, in St. Louis, in order to procure board and a room. He had previously lived at this house. On arriving there he ascertained that he could not at that time procure lodging and board, and he was compelled to seek food and shelter elsewhere. Accordingly he went to the Erie House, and there procured a bed for the night, after having done which he concluded he would go to the depot and get his baggage, which had been left there. So he started up Clark avenue to Sixth street, and from Sixth street he went over to Walnut, and started westward. The evening was cold, and he walked rapidly. He observed a man, who was walking still more rapidly, pass him, and immediately, when this other person had passed, he turned, presented a gun, and ordered the prosecuting witness to go into the alley. The prosecuting witness at first was reluctant to do this, but, on being approached from the rear by another man, who was aiding the party with a gun, he consented to go into the alley. When he was sufficiently removed from nearness to the street to justify the belief that he would be unobserved, the defendant and his partner in crime began to search the person of the prosecuting witness. The prosecuting witness remonstrated with the robbers, and was finally told that if he did not hush they would blow his brains out. The result was that the defendant and the person jointly indicted with him procured from the prosecuting witness $100 and a gold watch. The prosecuting witness identified the defendant as the person who searched him, and who took from his pockets a tin tube containing the $100. He described the color of his suit, the length of his coat, and the kind of a hat he wore on the occasion of the robbery. The defendant did not go upon the witness stand. He contented himself by attempting to prove an alibi by the immediate members of his family. There was some testimony tending to show that the defendant did not live at home, but spent most of his time in company with a woman who was sometimes referred to in the record as defendant's wife. The record, however, does not disclose whether the defendant was married. Various errors are assigned for reversal, which will be considered in the order of the appellant's brief.

1. There was no error in refusing the change of venue. The application therefor was not supported by the affidavits of the defendant and two witnesses, as required by the statute. State v. Hopkirk, 84 Mo. 278. Nor was any evidence offered to support the application. Moreover, the application, in itself, was devoid of merit. The mere fact that the panel which was selected to try defendant was a part of the same regular panel from which a panel was chosen to try Tibbetts who was jointly indicted with defendant for the same crime, constituted no reason whatever for granting defendant a change of venue. It does not even appear that Tibbetts was convicted, but, if it had, this was no ground for a change of venue.

2. There was no error in giving the instruction that, if the jury believed any witness had knowingly and willfully sworn falsely to any material fact, the jury were at liberty to disregard the whole or any portion of his or her testimony. In view of the positive and unqualified testimony of the prosecuting witness as to the identity and presence of defendant at the place of the robbery, and the equally positive evidence of the father and sisters of defendant that he was at the home of his father all that night and until the morning of the 10th of December, there is no reason why the instruction should not have been given. It nowhere intimates or assumes that it was the father or sisters that had falsely sworn about the matter. The instruction applied as well to the testimony of the prosecuting witness.

3. Much stress is laid upon the unsatisfactory proof upon which defendant was convicted. The prosecuting witness identified the defendant as one of the robbers. He says he stood right in front of him. Had no mask over his face, and there was an electric light not over 40 yards distant. The evidence satisfied the jurors, and their verdict met the approval of the circuit judge who presided at the trial. Surely it cannot be said that, if the evidence was believed, it was not sufficient; and obviously it was the province of the jury, and not this court, to weigh and determine the credibility of the witnesses. While we may, without transgressing our limitations as judges, reverse a case in which the evidence is so palpably weak that no citizen ought to be deprived of his life or liberty thereon, or in which, conceding the truthfulness of everything said, it falls short of that quantum or character of evidence required by law to convict, it is the settled doctrine that this court will not undertake to weigh the conflicting evidence, and decide which is entitled to most probative effect. The verdict of the jury was supported by sufficient evidence, if believed by the jury, as it plainly was. Counsel for defendant urges with great earnestness the evidence offered by defendant to prove an alibi, but it was for the jury to weigh that evidence in connection with the evidence of Officer Cremins, who testified that the defendant, when arrested, accounted for his whereabouts at the time of the robbery by saying he was then in a poolroom on Sixth street. He could not have been at his father's house and the poolroom at the same time. Nor was there any error in permitting the state to prove in its case in chief the defendant's voluntary statement that he was in the poolroom, as the court and the jury had already been advised by defendant's counsel that the defense would be an alibi. Much must be, and is, confided to the discretion of the trial judge as to the order of testimony, and we are unable to see how the admission of defendant to the officer was prejudicial, in the order in which it was admitted. No doubt can exist as to its competency.

4. By far the most serious contention is that the prosecuting attorney made erroneous statements of the law,...