State v. Wright

• Decision Date: 18 February 1928
• Docket Number: 28645
• Citation: 4 S.W.2d 456,319 Mo. 46
• Parties: The State v. Carl E. Wright, Appellant
• Court: Missouri Supreme Court

4 S.W.2d 456

319 Mo. 46

The State v. Carl E. Wright, Appellant

No. 28645

Supreme Court of Missouri

February 18, 1928

Motion for Rehearing Overruled March 24, 1928.

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Affirmed.

Bruce Barnett for appellant.

(1) DeMayo testified that defendant robbed him February 27, 1926 on the next day defendant's father, Don C. Wright, sent $ 140 by his son Ralph to Mr. Woods, a deputy sheriff of Clay County. The theory of the State was that this was a return of the money taken by defendant from De Mayo, as the latter testified. The conversation between Don C. Wright and the deputy sheriff immediately before the $ 140 was sent explanatory of the transaction, and refuting the inference that it was a return of money obtained by defendant by robbery of DeMayo was a verbal act and part of the res gestae, and said Don C. Wright's testimony as to such conversation, offered by defendant, should not have been excluded. Strothers v. McFarland, 194 S.W. 881; Gill v. Newhouse, 178 S.W. 495; Potter v. McDowell, 31 Mo. 74; State v. Gabriel, 88 Mo. 639; State to use v. Mason, 112 Mo. 380; Snyder v. Free, 114 Mo. 371; Bank v. Barbee, 198 Mo. 465; Harper v. Morse, 114 Mo. 325; Swope v. Ward, 185 Mo. 316; Mead v. Arnold, 131 Mo.App. 223; Pepperdine v. Bank, 84 Mo.App. 241. (2) DeMayo's testimony constituted the only direct proof of the corpus delicti; he had never seen defendant before the time of the alleged robbery and his later identification of him might well have been rejected by the jury. Defendant's request that the instructions include a statement as to the character of proof necessary to establish the corpus delicti should not have been denied. The verdict may have been founded upon defendant's admissions alone. State v. Skibiske, 245 Mo. 459; State v. Coats, 174 Mo. 396; Robinson v. State, 12 Mo. 592; State v. Brooks, 92 Mo. 586; State v. Davidson, 30 Vt. 377.

North T. Gentry, Attorney-General, and H. O. Harrawood, Special Assistant Attorney-General, for respondent.

(1) Defendant complains of the error of the trial court in refusing to admit in evidence, on behalf of the defendant, a certain conversation held between defendant's father, Don C. Wright and Deputy Sheriff Lowe, the day following the alleged robbery. This conversation was properly excluded. It was purely hearsay; was not in the presence of the defendant; was of an ex parte nature and not subject to cross-examination; was no part of the res gestae and was clearly inadmissible. The trial court excluded only the conversation. In re Sizer, 267 S.W. 932; State v. Widick, 292 S.W. 52; Kane v. Mo. Pac. Ry. Co., 251 Mo. 13; Minea v. Cooperage Co., 179 Mo.App. 705; State ex rel. v. Theisen, 142 S.W. 1088. (2) Defendant complains of the failure of the court to instruct the jury that in order to convict it was necessary for the jury to find from the evidence, "independently of confession or admissions made by the defendant otherwise than by his testimony at this trial, that a robbery was committed," and because of further failure to instruct the jury that "they cannot find the defendant guilty because of any statement or statements, confession or confessions made by the defendant other than by testimony given by the defendant at the trial, in the absence of other evidence sufficient to convince the jury that a robbery was committed." There was direct evidence of the commission of the crime and of defendant's guilt independent of defendant's extra judicial confessions and admissions. Under the Missouri rule no such instructions were necessary. State v. Coats, 179 Mo. 396; State v. Keltner, 278 S.W. 825; State v. Skibiske, 245 Mo. 459; State v. McCord, 237 Mo. 246; State v. Mullinix, 301 Mo. 391; State v. Knowles, 185 Mo. 177; State v. Walker, 98 Mo. 111; State v. Patterson, 7 Mo. 695.

OPINION

White, P. J.

In the Circuit Court of Jackson County the defendant was charged with robbery in the first degree. A jury found him guilty October 15, 1926, and assessed his punishment at five years in the penitentiary. Judgment followed from which he appealed.

The evidence for the State tended to show that February 27, 1926, about 3:30 P. M., the defendant and two other men went into the office of Frank DeMayo, at Room 412, Kansas City Life Building, Kansas City, Missouri, held up and robbed DeMayo and six other persons. They took from DeMayo one hundred and twenty dollars. He testified that he didn't know how much they took from the others. That was Saturday.

The next day the defendant's brother, Ralph Wright, took one hundred and forty dollars which the father of the two boys, Don Wright, gave him for the purpose, and delivered it to the constable, Jim Lowe, at Liberty. Lowe gave Ralph Wright a receipt for the money, stating that it was the money taken by Carl Wright, Carl Aker, and Ralph Cuthbertson, and an unknown person, from a gambling den in the Fidelity Life Building in Kansas City, Saturday afternoon, February 27th, the one hundred and forty dollars being a part of the share of the said Carl Wright in the proceeds of the said robbery, and that it was given to Ralph Wright for the purpose of having Ralph deliver the same to the Constable of Liberty Township, Clay County.

The State also introduced a written confession of Carl Wright, taken by the officers after he was arrested, in which he stated that February 27th, he, Mr. Aker, and another person of whose name he was uncertain, went into a gambling place in Kansas City Life Building, which was said to be occupied by bootleggers, dope peddlers and gamblers, and took six hundred and thirty-three dollars. They lined up the people and searched them; defendant's share was one hundred and fifty dollars.

J. J. Lowe, the constable, testified that after the one hundred and forty dollars was given to him by Ralph Wright, Carl Wright came to him and asked for it, saying that the man "over there in the city was not going to do anything about it." The constable referred him to Francis G. Hale, attorney for the sheriff. Mr. Hale testified that the defendant visited him two or three times in his effort to get the money which Ralph Wright had turned over to Lowe.

The defendant presented evidence tending to show an alibi. A number of witnesses swore that at about the hour he was charged with committing the robbery in Kansas City, they saw him in Liberty fifteen miles from where the robbery occurred. The defendant was employed by one E. E. Bell, who had the Chevrolet agency in Liberty. Defendant lived with his father on a farm a few miles from Liberty. Several witnesses for the defendant testified that he had a good reputation. The State introduced evidence tending to show his reputation was bad.

I. The appellant offered evidence to show that the one hundred and forty dollars which his father, Don Wright, sent to Constable Lowe, was for another purpose than that claimed by the State. The evidence was excluded and error is assigned to the ruling.

Don Wright was sworn and asked to state a conversation he had had with the constable about the matter. The evidence was objected to; the jury was excused, and out of the presence of the jury the witness stated what was desired to be proved. Under the circumstances the defendant had a right to show that the money was sent to Lowe for another purpose; not for the purpose of restoring Carl's share in the robbery. Defendant had had difficulty with some Italians on account of the injury which he had inflicted upon their car. They had threatened him and the purpose of sending the money was to square the damage which he had inflicted. It appears from a colloquy in the record that defendant claimed those Italians were intending to use this charge of robbery in order to force payment for the damage to their car. It was entirely proper for Don Wright to swear to any fact within his knowledge. He knew what he sent the money for, and he knew, if true, that the demands of the Italians caused him to send it. But he was not asked by defendant's counsel to state the facts within his knowledge. He was asked to relate a conversation he had with the constable in which he told about it. He was not asked what he knew about it, but what he said about it. It was an attempt to prove a fact by pure hearsay statements. No specific fact was attempted to be elucidated. All that was asked was what the witness told the constable. Counsel offered to prove that Don C. Wright understood that the purpose for which the one hundred and forty dollars was paid to Lowe was to...