State v. Worten
| Decision Date | 05 June 1924 |
| Docket Number | 25256 |
| Citation | 263 S.W. 124 |
| Parties | STATE v. WORTEN |
| Court | Missouri Supreme Court |
Stubbs Stubbs, Wolfe & Sloan, of Kansas City, for appellant.
Jesse W. Barrett, Atty. Gen. (Ellison A. Poulton, of Canton, of counsel), for the State.
Appellant was indicted in the circuit court of Jackson county for robbery in the first degree. Upon a trial he was convicted and sentenced to five years' imprisonment in the penitentiary. From this judgment he appeals.
In the afternoon of May 6, 1922, two or more men, one of them being the appellant, entered the offices of a construction company in one of the office buildings in Kansas City and with drawn pistols compelled an accountant in charge of the office to hold up his hands, and while he was thus held in durance by one of the men the other took from the safe $ 4,716.91 in money and carried the same away. Immediately following this occurrence two of the men, one of whom was the appellant, went into the offices of a brokerage company which was adjacent to the offices of the construction company and with drawn weapons commanded the employees to hold up their hands and to come out into the hall and turn their faces to the wall. They were then commanded to go into the offices of the construction company. This they did, and the appellant and his associates in the commission of the crime ordered an elevator girl to take them to the basement without stopping. She complied, and from thence they made their escape. She testified that there were five men who went up the elevator to the scene of the robbery, and that they soon thereafter went down together, each armed, and that one of them carried a roll of money; that in commanding her to take them direct to the basement without stopping they said that they knew her and her place of residence and if she made a misstep they would come out and get her. She testified that she was very much frightened and could not thereafter identify the appellant as one of the parties; that she thought four of the men were white and one colored. The appellant was positively identified by three of the persons who occupied the office of the brokerage company as the one who held the gun on them while the robbery was being committed. Prior to his apprehension, appellant's picture in the Rogue's Gallery at the office of the police department of Kansas City was identified by one of these witnesses. Another witness, the president of the brokerage company, not only identified the appellant after he was apprehended by picking him out from a number of other negroes then held by the police, but also identified him at the trial. The evidence as to the appellant's identification is stressed on account of the nature of the defense interposed. A number of witnesses for the defense testified that on the day of the robbery the appellant was confined to his bed by sickness at his mother's in Kansas City. Aside from technical objections to the manner of the trial, an alibi is the burden of the defense.
The instructions given at the request of the state, designated numerically, were substantially as follows:
(1) Simply states the forms of the verdict.
(2) Is a general instruction hypothesizing the facts which, if believed by the jury, would authorize a finding of guilty and defining the punishment. To this is appended a statement as to the individual liability of persons in the joint commission of a crime.
(3) That criminal intent may be shown by facts and circumstances surrounding the commission of an offense as well as by direct evidence.
(4) That any evidence raising a doubt in the minds of a jury of the presence of the appellant at the time and place where the robbery was committed, if such commission be found, will authorize an acquittal.
(5) Is the stereotyped instruction as to the presumption of innocence; and another paragraph embodies the usual instruction as to a reasonable doubt.
(6) Defines with clearness the province of the jury as to credibility of the witnesses' testimony and the weight and value to be given the same.
I. Instructions, designated by letters, were asked by the appellant and refused.
A is as to the presumption of innocence and was fully covered by the state's instruction numbered six.
B, C, and D were requested upon the theory that they embodied the converse of instruction No. 2, given at the request of the state. These were properly refused because of the giving of the state's instruction No. 4.
E on reasonable doubt was unnecessary on account of the instruction on this subject given at the request of the state.
The state's instructions in regard to the necessity of proof showing the presence of the appellant at the time and place of the crime rendered unnecessary the giving of instruction F. A like reason authorized the court to refuse appellant's instruction G on alibi and also instruction H on the presumption of innocence. Instruction I was on the propriety of proof of an alibi and what was necessary for the jury to find to authorize an acquittal. The instruction given for the state on this subject was ample to enable the jury to properly discharge their duty, and the appellant's instruction was therefore refused.
The court had properly instructed the jury as to the credibility of witnesses and the weight to be given their testimony, and the refusal to give appellant's instruction J was not error. There was no evidence to sustain instruction K, and it was properly refused.
II. As stated, the defense was an alibi. Several witnesses testified that the appellant was ill and confined to his bed the day of the robbery. Three disinterested witnesses for the state, who were present at the time of the robbery, positively identified the appellant as one of the men guilty of the crime. The jury, charged with a trial of the facts and empowered to determine the truth or falsity of same, gave no credence to the testimony of appellant's witnesses, but believed the statement of the witnesses for the state. This testimony being of probative force in the determination of the issue submitted, convincing in its character, and given by reputable persons, no fault can be found with the action of the jury in regard thereto.
III. The essential element of the defense being an alibi, and the court having given at the request of the state a converse instruction on this subject, the appellant suffered no prejudice by reason of the court's refusal to give the instructions requested by the appellant. These instructions so far as they correctly stated the law, were nothing more than the converse of...
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