State v. Thomas

• Decision Date: 07 May 1935
• Docket Number: 33808
• Citation: 82 S.W.2d 885
• Parties: STATE v. THOMAS
• Court: Missouri Supreme Court

82 S.W.2d 885

STATE v. THOMAS

No. 33808

Supreme Court of Missouri, Second Division

May 7, 1935

Roy McKittrick, Atty. Gen., and William W. Barnes, Asst. Atty Gen., for the State.

OPINION

LEEDY Judge.

On July 18, 1933, an information was filed in the circuit court of Pemiscot county charging appellant with an assault with malice aforethought, and with a deadly weapon with intent to kill. Upon a trial in said court, he was found guilty, and sentenced to a term of 55 years in the State Penitentiary. From the judgment rendered, he has appealed, but has filed no brief.

The offense is alleged to have occurred on April 29, 1933, at which time appellant, a colored youth, was about 19 years of age. In substance, the facts may be stated as follows: The prosecuting witness, Jim Martin, a man about 65 years of age lived at Canady Switch in Pemiscot county, where he conducted a store. He and his wife maintained living quarters in the store building. About 8 o'clock in the evening of the day in question, which was Saturday, a negro, positively identified as the appellant by Martin, his wife, and a customer, entered the Martin store and asked for overalls. When asked as to the size desired, he said 'The biggest you've got.' He was shown size 40. These he agreed to take, and requested that they be reserved or set aside for him, stating he would return and get them. The negro was a stranger to Martin, and upon being asked as to where he stayed or worked, he said 'Over at Crews Reynolds.' Martin then solicited him to 'bring the boys over' saying he would treat them right, to which appellant replied, 'I will bring three back.' About a half an hour later and just after Mr. and Mrs. Martin had closed the store for the night, and extinguished the lights in that part of the building used as a grocery, there was a rap on the door. Mr. Martin opened it, and his wife turned on the lights, and the negro who had looked at the overalls entered. Mr. Martin got the overalls, and was wrapping them when two other negro men entered the store, and Mrs. Martin proceeded to wait on them. After wrapping the overalls, Mr. Martin procured two sacks of tobacco at the request of his customer and put them with the overalls in a package, and told him his bill was 85 cents. Not having received a reply, Mr. Martin repeated the remark a time or two, and finally said, 'Boy, pay me eighty-five cents or I will put the overalls back.' Just at that time, Mrs. Martin screamed, and the prosecuting witness turned to look in her direction. As he did so, his customer said, 'Stick 'um up.' Mr. Martin then started to go to the assistance of his wife, and was shot by the man upon whom he had been waiting. One of the other negroes, identified as Pete, a brother of appellant, who in the meantime had put on a mask, was struggling with Mrs. Martin and had hold of her neck, and her feet up off the floor. After he was shot, Martin 'pulled' Pete, and went into a back room and got a gun. Returning to the storeroom, he shot and killed Pete. His direct examination on the point was as follows: 'When I come out of the room, about eight feet from the door, the counter running north and south, he just made a dive and hid in front of the counter, that put him against the counter, and then I just eased the gun up and shot him. When I shot him he fell back and I shot again. I had picked up two shells and put in the gun, number six squirrel shells, put two in and come back, I was expecting the others to be in there, and when I come back I didn't see any more darkies.' It was shown that the prosecuting witness, after being shot, had walked about 52 feet in getting his gun, and returning to the place where Pete was shot. The bullet entered Martin's back 'and came out in the front, just over the liver.'

At the trial appellant was positively identified by Martin and his wife as Martin's assailant, and was further positively identified by the witness Jones, who was in the store on the occasion of his earlier visit to the store on the evening in question when he bargained for the overalls.

Appellant's defense was an alibi. He testified, and was corroborated to some extent by numerous friends and acquaintances that at the time in question, and during all of the evening of April 29, he was in Caruthersville, some eight miles distant from Canady Switch. There were, however, certain discrepancies in the testimony on that issue. Other facts will be stated in the course of the opinion in connection with the points to which they relate. As stated, appellant has not briefed the case in this court. We look, therefore, to the motion for new trial for his assignments of errors, and find seven grounds alleged, which we shall treat seriatim.

I. The first specification, namely, 'That the verdict of the jury is against the evidence, against the weight of the evidence, and against the law under the evidence' is too general to preserve anything for review. Section 3735, R. S. 1929 [Mo. St. Ann. § 3735, p. 3275]; State v. Martin, 317 Mo. 313, 295 S.W. 543; State v. Francis, 330 Mo. 1205, 52 S.W.2d 552; State v. Tharp, 334 Mo. 46, 64 S.W.2d 249; State v. Parsons (Mo. Sup.) 285 S.W. 412; State v. Goodwin, 333 Mo. 168, 61 S.W.2d 960; State v. Carroll, 333 Mo. 558, 62 S.W.2d 863.

II. The second ground of the motion presents the most serious question in the case. Quoting from the respondent's statement, it is said, 'Martin saw the defendant more than a month after the assault at the home of Mr. Lentz, a son-in-law, where he was staying during his convalescence. The officers took three negroes for Martin to view, and he identified defendant as the one who shot him.' Such testimony was offered by the state as a part of its case in chief. Complaining of the admission thereof, the motion for new trial recites: 'That the court erred in admitting irrelevant, immaterial and hearsay evidence on the part of the State and against the defendant, in this to wit, that the court over the objections and exceptions of the defendant permitted the witnesses, Bob Ownsby, Mrs. James Martin, and Mr. Lentz, the same being a deputy sheriff, the wife of the prosecuting witness, and the son-in-law of the prosecuting witness, James Martin, respectively, to testify that the prosecuting attorney, the deputy sheriff and a Justice of the Peace, took the defendant and two other negroes out of jail and carried them to Netherlands, Missouri, where the prosecuting witness, James Martin, was living and that James Martin pointed out, selected, identified and said that the defendant was the man who shot him, James Martin, in his store at Canady's Switch. This testimony being objected and excepted to by the defendant, for the reason that it was wholly incompetent and was hearsay.'

In State v. Baldwin, 317 Mo. 759, 297 S.W. 10, in an OPINION en banc, it was held that extrajudicial identifications are not original testimony as to identity of a party, and are inadmissible and irrelevant as such. A later case, State v. Buschman, 325 Mo. 553, 29 S.W.2d 688, 690, 70 A. L. R. 904, was, on the facts, distinguished from the Baldwin Case. In the Buschman Case it was said, 'The evidence admitted over defendant's objection, and of which he now complains, was the testimony of witness Nicklin that he saw and recognized defendant at the police station the day after the robbery. Defendant contends that such testimony was merely a bolstering up of Nicklin's testimony identifying defendant at the trial as one of the men who robbed him, and that it was incompetent and prejudicial under the ruling of this court en banc in State v. Baldwin, 317 Mo. 759, 297 S.W. 10.' It was further pointed out that 'He [Nicklin] did not testify, nor did any other witness, that he pointed out defendant or by word, sign, or act communicated or indicated to any one the fact that he recognized defendant. It is clear * * * that he used the word 'recognized' with reference to his own mental process, meaning merely that he knew or perceived defendant to be one of the men in question. The testimony condemned as incompetent and prejudicial in State v. Baldwin, supra, was testimony proving acts of the witness pointing out that [the?] defendant at the police station as the man who had robbed him, which acts were the same in effect and in principle as declarations of the witness that defendant was the man who had robbed him.'

In order to determine the correctness of the court's ruling, in the light of the holdings just referred to, it becomes necessary to detail the circumstances attending the admission of such testimony. Treating the testimony complained of in the order in which it was offered:

(A) As to Lentz: The matter was developed on redirect examination. Asked if he was present at his home when the deputy sheriff brought defendant and two other negroes there, the witness replied in the affirmative. He was then asked if Mr. Martin 'identified' defendant, to which an objection was interposed on the sole ground the question called 'for the conclusion and opinion of this witness.' The objection was overruled, and an exception saved. The answer was, 'Mr. Ownsby brought three negroes handcuffed,' when counsel interrupted to object on the ground 'it is not responsive to the question. He can answer yes or no.' The objection was overruled, and exception...