State v. Wilson

• Decision Date: 18 December 1928
• Docket Number: No. 29046.,29046.
• Citation: 12 S.W.2d 445
• Court: Missouri Supreme Court
• Parties: THE STATE v. MARTIN WILSON, <I>alias</I> MORRIS KAPLAN, Appellant.

12 S.W.2d 445

THE STATE v. MARTIN WILSON, alias MORRIS KAPLAN, Appellant.

No. 29046.

Supreme Court of Missouri. Division Two.

December 18, 1928.

Appeal from Jackson Circuit Court. — Hon. Brown Harris, Judge.

AFFIRMED.

Bass & Bass and Julius A. Razovsky for appellant.

(1) The court erred in overruling defendant's objection to the testimony of officer Schins, his name not being indorsed on the indictment as required by law. (2) The court erred in overruling the objection made to the State's cross-examination of defendant as to matters not brought out in the examination in chief. The cross-examination of defendant as to his domestic affairs, such as his divorce, alimony, support of children, violated the statutes and was unfair. Sec. 4036, R.S. 1919; State v. Pfeifer, 267 Mo. 23; State v. Grant, 144 Mo. 56; State v. Hathhorn, 166 Mo. 229. (3) The court erred in permitting counsel for the State to make an inflammatory and improper argument to the jury, not based on evidence, over the objection of the defendant. State v. Hess, 240 Mo. 147; State v. Houston, 263 S.W. 219; State v. Dixon, 253 S.W. 746; State v. Guerringer, 265 Mo. 408; State v. Webb, 254 Mo. 414. (4) The court erred in refusing to sustain defendant's motion to discharge the jury because of the inflammatory and prejudicial arguments made by counsel for the State, that were not based on the evidence. (5) The court prejudicially erred in failing to instruct the jury upon the defendant's defense of an alibi, there being substantial evidence upon which to base such instructions. Sec. 4025, R.S. 1919; State v. Taylor, 118 Mo. 180. (6) It was the court's plain statutory duty to have of its own motion instructed the jury on the law regarding the defense of an alibi, whether requested or not. It was prejudicial error not to do so. Sec. 4025, R.S. 1919; State v. Taylor, 118 Mo. 153; State v. Conway, 241 Mo. 271; State v. Burrell, 298 Mo. 672; State v. Cantrell, 290 Mo. 232; State v. Koplan, 167 Mo. 305. (7) The defense of an alibi is not a collateral issue, nor analogous thereto, nor an extrinsic defense or an affirmative defense, but is a traverse of the material allegations of the indictment that the defendant did then and there the particular act charged. It is rebuttal of the essential facts necessary to a conviction. Hence, the defense of an alibi is within the terms of Sec. 4025, R.S. 1919, requiring the court to instruct thereon whether requested or not. State v. Taylor, 118 Mo. 153; State v. Starr, 244 Mo. 161; State v. Harvey, 131 Mo. 339; State v. Kelly, 16 Mo. App. 216; 1 Cyc. Criminal Law (Brill), sec. 190, and cases in footnotes; State v. Slusher, 301 Mo. 285; State v. Gabriel, 301 Mo. 374; State v. Cantrell, 234 S.W. 800. The facts tending to support the defense of an alibi should receive from the court the same consideration in its instructions to the jury as facts tending to support any other defense. State v. Taylor, 118 Mo. 174; State v. Crowell, 149 Mo. 391; Parker v. State, 136 Ind. 284; Albin v. State, 63 Ind. 598.

Stratton Shartel, Attorney-General, and A.B. Lovan, Assistant Attorney-General, for respondent.

(1) The statute provides that other witnesses, besides those whose names are indorsed on the indictment, may be used by the State. Sec. 3889, R.S. 1919; State v. Steifel, 106 Mo. 133; State v. Pinson, 291 Mo. 335. (2) The cross-examination was a proper one. The subject-matter of the cross-examination was brought out in defendant's examination in chief and was, therefore, authorized by Sec. 4036, R.S. 1919. The character of the cross-examination is largely in the discretion of the trial judge. State v. Wagner, 279 S.W. 29. (3) The argument of the prosecuting attorney was not error. It will be noted that the court, upon objection being made by appellant, instructed the jury to disregard the statement made. And, moreover, the prosecuting attorney explained and qualified his statement as above set out. If the appellant desired the court to take any further steps, it was his duty to make a specific request of the court. State v. Baker, 175 S.W. 68. "To what extent a trial judge may interfere in any case must depend upon the exercise of a sound discretion ... and it is only when it clearly appears that this discretion has been abused that we will interfere." Huckshold v. Ry. Co., 90 Mo. 559. (4) The appellant did not ask for an instruction on alibi. This court will not reverse a case for failure to give an instruction on a collateral matter when such instruction was not requested. State v. Shroyer, 104 Mo. 448; State v. Lackey, 230 Mo. 720; State v. Brazel, 270 S.W. 274; State v. Cardwell, 279 S.W. 100; State v. Sanders, 4 S.W. (2d) 816.

WALKER, J.

The appellant, with two others, was indicted in the Circuit Court of Jackson County, charged with robbery in the first degree. He was granted a severance, tried to a jury, found guilty and his punishment assessed at forty-five years in the penitentiary. From this judgment he appeals.

At about nine o'clock or a little later on the night of February 28, 1927, the appellant and two associates, armed with revolvers and claiming to be "Government men" looking for whiskey and marked money, entered a restaurant or soft-drink parlor in Kansas City and pointing a revolver at the proprietor ordered him to "back up and take the booze out of the safe." He did as ordered and they took the money from him, ordered him to put up his hands and get behind the bar. As he did this they ran for a car which they had left standing at the door and as they ran shot several times at the proprietor. The amount of money taken by these men was $4,430. Mounting the car they drove rapidly down the street. An officer attempted to intercept them but they disregarded his attempt and the shot he fired at the car did not slacken their speed. Proceeding a short distance further the car ran into the abutment of a bridge, was wrecked, took fire or was set on fire and destroyed. Persons who were attracted to the scene testified that the men who had been ejected from the car by the collision were, when the witnesses came up, trying to destroy the car by burning it.

The appellant was arrested on the following night. One hundred dollars was found on his person and he told the officer who arrested him that he only got two hundred and forty dollars of the money. The proprietor of the restaurant and a spectator who was present at the time of the robbery, identified the appellant as one of the men who, with a revolver in his hand, participated in the robbery; and two witnesses who came upon the scene immediately after the car struck the abutment of the bridge identified the appellant as one of the men who was present when the car was wrecked and who with the others were attempting to burn it. A short time after the witnesses arrived upon the scene the three men left hurriedly. The proprietor of a garage who rented cars testified that at about seven-thirty o'clock on the night of the robbery he rented a car to the appellant, and at sometime after nine o'clock that night the appellant came to his place and reported that the car had been stolen.

The appellant testified that his name was Morris Kaplan; that he went by the name of Martin Wilson. He denied his participation in the robbery and stated that he was elsewhere at the time of its commission; that he did rent a car that night to take some young ladies riding, and while he was waiting at a hotel for them the car was stolen from the place where he had parked it.

The appellant assigns as error that a witness, whose name was not indorsed on the indictment, was permitted to testify; that appellant was improperly and prejudicially cross-examined; that the prosecuting attorney made improper remarks in his argument to the jury; that an instruction on alibi should have been given, and that the evidence was insufficient to sustain the verdict.

I. The statutes (Secs. 3849, 3889, R.S. 1919) provide that other witnesses than those whose names are indorsed on the indictment or information may be sworn by the State. The appellant's objection in this regard is based upon Unindorsed the ground of surprise. To render this objection Witnesses. effective it was his duty to either file a motion to quash the indictment or demand that he be given a reasonable time within which to meet the testimony of the objectionable witness. He did neither, but contented himself with objecting to the admission of the testimony. His objection, therefore, is not entitled to consideration. [State v. Cook, 3 S.W. (2d) 365, 367 and cases cited and discussed therein.]

II. The contention is made that the appellant was improperly cross-examined as to matters not brought out in his examination in chief. There is no merit in this Cross-Examination contention. It appears from the transcript of of Defendant. the testimony — not from the appellant's statement of the same — that the...