State v. Trice

• Decision Date: 21 March 1936
• Docket Number: 34705
• Citation: 92 S.W.2d 135,338 Mo. 744
• Parties: The State v. Ray Trice, Appellant
• Court: Missouri Supreme Court

92 S.W.2d 135

338 Mo. 744

The State v. Ray Trice, Appellant

No. 34705

Supreme Court of Missouri

March 21, 1936

Appeal from Circuit Court of City of St. Louis; Hon. Wm. S Connor, Judge.

Affirmed.

Joseph Letorney for appellant.

Roy McKittrick, Attorney General, Wm. Orr Sawyers Assistant Attorney General, and Aubrey R. Hammett Jr., Special Counsel, for respondent.

(1) The general conduct and manner of the court in entertaining objections and exceptions of defendant's counsel, in controlling defendant's counsel in cross-examination was above criticism. Sec. 3735, R. S. 1929; State v. Zoller, 1 S.W.2d 141. (2) The court committed no error in admitting typewritten copy of confession in evidence. 22 C. J., p. 1024, sec. 1314; State v. Lee, 138 So. 662. (3) No reversible error was committed when the prosecuting attorney read the information to the jury together with an affidavit swearing to the information. State v. Gilmore, 81 S.W.2d 433; State v. Brown, 62 S.W.2d 427; Sec. 3563, R. S. 1929. (4) Argument and conduct of the prosecuting attorney was above criticism. State v. Taylor, 18 S.W.2d 478; State v. Rogers, 253 Mo. 415, 161 S.W. 770; State v. Emory, 79 Mo. 463; State v. Fitzsimmons, 338 Mo. 230. (5) No error was committed when the court refused to allow the prosecuting witness to be cross-examined as to his failure to identify defendant's accomplice in the robbery on first sight but later identifying said accomplice. State v. Douglas, 278 S.W. 1025, 312 Mo. 373. (6) The court committed no error in not instructing on the defense of alibi. State v. White, 189 Mo. 351, 87 S.W. 1192; State v. Bond, 191 Mo. 555, 90 S.W. 832. (7) No error was committed in refusing defendant the right to introduce the whole transcript of the preliminary hearing in order to impeach the prosecuting witness on one particular answer to a question at the preliminary. State v. Coleman, 97 S.W. 577, 199 Mo. 112. (8) The court did not err in refusing counsel for defendant to examine police officials in direct examination as to his opinion as to whether prosecuting witness was robbed based upon prosecuting witness's demeanor and actions immediately after the alleged robbery. State v. Wertz, 90 S.W. 841, 191 Mo. 569.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant was convicted in the Circuit Court of the City of St. Louis, Missouri, on a charge of robbery in the first degree and received a sentence of ten years' imprisonment in the penitentiary. Being unsuccessful in obtaining a new trial he has appealed. The evidence disclosed that on the 25th day of November, 1934, two negroes entered a pawn shop located at 2717 Franklin Avenue, St. Louis, Missouri, and at the point of a revolver obtained over $ 500 from a safe and from the person of the man in charge of the pawn shop. Appellant was identified as the person who held the revolver. The State also introduced evidence of a confession alleged to have been made by appellant.

Appellant denied his guilt and claimed that the signed confession, introduced in evidence, had been obtained under duress. Other facts will be stated, as they become necessary, in considering appellant's assignments of error as contained in his motion for new trial. No brief was filed on appellant's behalf.

Error was assigned because the trial court admitted in evidence a copy of the alleged confession of appellant when it was shown that the original was in existence. On the face of the assignment it would seem that the trial court had erred. The evidence, however, disclosed that the statements, alleged to have been made by appellant, were written with a typewriter, in the form of questions and answers, at the time the statements were made; that a number of carbon copies were made at the same time; that appellant signed the carbon copy which was introduced in evidence. Reference is usually made to such writings as carbon copies, when in fact they are duplicates and when signed by the parties are admissible in evidence. The rule supported by numerous authorities is thus stated in 22 Corpus Juris 1024, section 1314:

"Where several copies of a writing are made at the same time by the same mechanical operation, each is regarded as an original and is admissible as such."

It is apparent, therefore, that the trial court did not err.

Appellant complains because the information as well as the affidavit of the prosecuting official were read to the jury. The record shows that the information was read but that the affidavit was not read. We discussed the propriety of reading the information to the jury in the cases of State v. Brown, 62 S.W.2d 426, l. c. 427 (1), and State v. Gilmore, 336 Mo. 784, 81 S.W.2d 431, l. c. 432 (3, 4). We need not consider the question again. In this case the trial court instructed the jury that the information contained the formal charge and was not to be taken as any evidence of defendant's guilt; also that the guilt of the defendant must be established, by evidence, beyond a reasonable doubt before the jury would be authorized to convict. We are of the opinion that in view of the instructions the jury well understood that the information was not to be considered by them in determining the guilt of appellant.

Error was assigned to the action of the trial court in refusing to permit appellant to show that the prosecuting witness failed to identify the person arrested with appellant to be the other robber and that this person had not been charged with the offense. Whether or not the prosecuting witness was able to identify the other party to the crime or whether such person had been charged was entirely immaterial to the issues in the case. The prosecuting witness was cross-examined to some extent on this question and testified that he had his eyes on the gun appellant had pointed at him. In that way he explained his failure to identify the other party to the crime. The prosecuting witness was cross-examined at length as to his ability to identify appellant and to a limited extent as to the identity of the person arrested with appellant. The arrest was made some weeks after the crime had been committed. Since the identity of the person arrested with appellant was immaterial to the issues in the case it was not error for the trial court to limit the cross-examination on that subject. [State v. Douglas, 278 S.W. 1016, l. c. 1025 (20, 21), 312 Mo. 373.]

The trial court did not give an alibi instruction. This was assigned as error. Appellant offered a number of instructions, but did not offer one on an alibi. The case of State v. Koplan, 167 Mo. 298, 66 S.W. 967, was cited by appellant. In that case it was ruled:

"The defense was an alibi; that is, that the defendant was elsewhere than at the place of the commission of the crime at the time it was committed. The court gave no instruction upon this theory of the case, although defendant testified that he was not present at the commission of the offense, and called the court's attention to the fact that the instructions given 'do not cover the whole law of the case,' and in this, we are of the opinion, committed reversible error."

However, in a later case, State v. Starr, 244 Mo. 161, 148 S.W. 862, l. c. 867 (8, 9), the question of a defendant's duty with regard to instructions on collateral matters was considered at length and this court said:

"We now hold that as to collateral questions the parties must formulate and ask such instructions as they may be entitled to, and such instructions should embody the principle for which they contend. If improperly framed, the trial court should correctly reframe them, if the principle embodied is applicable to the facts. Questions of law arising upon evidence impeaching witnesses are collateral questions. [State v. Kilgore, supra.] In the case at bar the defendant presented no instruction upon this point, but contented himself with a vague verbal request which did not indicate the nature of the instruction desired. At the same time he offered several written instructions on various other questions. We are of the opinion that under these conditions the court was not required to formulate an instruction upon the proposition."

A trial court need not of its own motion instruct on alibi. The Koplan case recognized this rule. It was expressly so held in State v. Parker, 301 Mo. 294, 256 S.W. 1040, l. c 1043 (6), and State v. Wilson, 12 S.W.2d 445, 321 Mo. 564. The rule in the...