The State v. Baldwin

• Decision Date: 27 June 1927
• Docket Number: 26206
• Parties: The State v. Sylvester Baldwin, Appellant
• Court: Missouri Supreme Court

297 S.W. 10

317 Mo. 759

The State v. Sylvester Baldwin, Appellant

No. 26206

Supreme Court of Missouri

June 27, 1927

Appeal from Circuit Court of City of St. Louis; Hon. Victor H Falkenhainer, Judge.

Reversed and remanded.

P H. Cullen, Jones H. Parker and Owen G. Jackson for appellant; Bass & Bass, of counsel.

(1) Prior consistent statements or acts of a witness who has not been impeached are not admissible in evidence for the purpose either of corroborating his testimony or of increasing his credibility. Orris v. Railroad Co., 279 Mo. 1; Humphreys v. Railway Co., 286 S.W. 743; Riney v Vanlandingham, 9 Mo. 816; State v. Levy, 90 Mo.App. 643; State v. Hendricks, 172 Mo. 654; State v. Brown, 247 Mo. 715; Russell v. Covelero, 246 P. 25; Hardin v. Ry. Co., 108 S.W. 490. (2) An "extrajudicial identification," as it is called, of a person accused of crime, is never competent as original evidence in the subsequent trial; neither is it competent to corrobarate an identifying witness in a criminal trial by proof of a former identification where no attempt has been made to impeach such witness in any way. People v. Jung Hing, 212 N.Y. 393; State v. Houghton, 43 Ore. 125, 71 P. 982; State v. Evans, 98 Ore. 214, 192 P. 1062; Warren v. State, 103 Ark. 165, 146 S.W. 477; People v. Lukoszus, 242 Ill. 101, 89 N.E. 749; People v. Seppi, 221 N.Y. 62; Cummings v. State, 87 Tex. Cr. 154, 219 S.W. 1104; Gillotti v. State, 125 Wis. 634, 116 N.W. 252; State v. Hamilton 176 N.W. 773; Reddick v. State, 35 Tex. Crim. 463, 60 Am. St. 56, 34 S.W. 274; Clark v. State, 39 Tex. Crim. 152, 45 S.W. 696; Moore v. State, 40 Tex. Crim. 439, 50 S.W. 942; Murphy v. State, 41 Tex. Crim. 120, 51 S.W. 940; Turman v. State, 50 Tex. Crim. 7, 95 S.W. 533; People v. Allison, 249 P. 881; People v. Purtell, 153 N.E. 72; Venn v. State, 182 S.W. 318. (3) As to when evidence of the extrajudicial identification of a defendant as the wrongdoer is excluded, and when an identifying witness cannot be corroborated by evidence of a former accurate description of the defendant by him, see: People v. Mayne, 118 Cal. 517, 50 P. 654; People v. Jung Hing, 212 N.Y. 393, Ann. Cas. 1915-D 333 and note; Notes: 41 L. R. A. (N. S.) 949; Rogers v. State, 115 S.W. 156, 41 L. R. A. (N. S.) 857, and note; Note: Ann. Cas. 1915-D 341; People v. Johnson, 91 Cal. 265, 27 P. 663; People v. McNamara, 94 Cal. 509, 29 P. 953; People v. Lu Koszus, 242 Ill. 101, 89 N.E. 749; Com. v. James, 99 Mass. 438; Com. v. Fagan, 108 Mass. 471; Mallory v. State, 37 Tex. Crim. 482, 36 S.W. 751, 66 Am. St. 808. (4) Evidence that the photograph was kept in the Bertillon room was not admissible for any purpose, and hence a general objection was sufficient. State v. Barker, 249 S.W. 74; State v. Condit, 307 Mo. 393.

North T. Gentry, Attorney-General, and L. Cunningham, Assistant Attorney-General, for respondent.

(1) The evidence is sufficient to justify and sustain the conviction. It is positive and convincing. State v. McCullough, 289 S.W. 811; State v. Hahn, 289 S.W. 845; State v. Holmes, 289 S.W. 904; State v. King, 214 Mo. 389; State v. James, 216 Mo. 394; State v. Strada, 274 S.W. 34. (2) The objections of defendant to the admission of evidence and the rulings of the trial court are fully set out herein under bill of exceptions. A careful study of the same will show conclusively that the trial court committed no serious error. In order for the appellant to complain of the rulings of the court on the admission of evidence, his objections must be timely and specifically state the reasons therefor, and this court should not convict the trial court of error, even though the evidence should not have been admitted, if proper timely objection was not made. State v. Tipton, 271 S.W. 58; State v. Strait, 279 S.W. 113. (3) The photograph of the defendant was admitted in evidence solely on the question of identity. There is no evidence that it was a Bertillon photograph taken under the statute for the identification of convicted criminals. The evidence only went to the extent of disclosing that it was a photograph which had been kept in the Bertillon room at police headquarters. In any event it was properly admitted. (4) A photograph of the accused is admissible on the question of his identity. Commonwealth v. Morgan, 159 Mass. 375; Commonwealth v. Johnson, 199 Mass. 55; State v. Fulkerson, 97 Mo.App. 605. A photograph shown to be a correct representation of the person whose identity is in question is admissible for the purpose of identifying him. State v. Jones, 139 P. 441, 48 Mont. 505, 520; State v. Smith, 121 N.Y. 578; Moon v. State, 198 P. 292; Commonwealth v. Tucker, 189 Mass. 457; People v. Carey, 125 Mich. 535, 84 N.W. 1087; People v. Searcey, 121 Cal. 1, 53 P. 359; Johnson v. State, 59 N. J. L. 535, 38 L. R. A. 373; 2 Wharton's Crim. Ev. (10 Ed.) 1006, 1126-1132; 1 Wharton's Law of Ev. (3 Ed.) 676; McClain on Criminal Law, sec. 406; Underhill on Criminal Law, sec. 50; 1 Wigmore on Evidence, 660; State v. Hasty, 121 Iowa 507, 96 N.W. 1115; State v. Keller, 191 Pa. 122; Commonwealth v. Campbell, 155 Mass. 537; Underhill on Criminal Ev. (3 Ed.) 1132-1141. Testimony as to identification of photograph was proper. Baustian v. Young, 152 Mo. 317; Smart v. Kansas City, 91 Mo.App. 586. (5) The rulings of the trial court were right, but in any event no proper objection was made on which the court could be convicted of error. If the photograph admitted in evidence was competent for any purpose whatever, the objection as made by defendant and on which the trial court ruled was wholly insufficient to raise any question for review. The motion for new trial was too general to direct the court's attention to the testimony complained of or to the photograph. Masked batteries should be barred in the warfare for truth and justice. The purpose of a motion for new trial, even under the old statute, was to point out the errors complained of and state the reasons entitling the party to a new trial. It was never intended that the trial court should be convicted of error on a general allegation of error. The motion must set forth the grounds or cases therefor. Sec. 4079, R. S. 1919; State v. Knight, 278 S.W. 1039; State v. Gurnee, 274 S.W. 60; State v. Saale, 274 S.W. 396; Heinbach v. Heinbach, 274 Mo. 301; State v. Burrell, 298 Mo. 679; State v. Parker, 256 S.W. 1040; State v. Lassieur, 242 S.W. 900; State v. Delcour, 297 Mo. 321; State v. Tipton, 271 S.W. 58. (6) An argument which is a legitimate comment on the evidence or the nature of the defense, or the inferences to be drawn therefrom in the light of history or the common experience of men, is not improper. It was not error to refer to the prevalence of crime or to conditions surrounding the case. The remarks complained of would not warrant the directing of a new trial. State v. Peak, 292 Mo. 264, 237 S.W. 466; State v. Gallagher, 222 S.W. 468; State v. White, 299 Mo. 610; State v. Lloyd, 263 S.W. 214; State v. Affronti, 238 S.W. 106; State v. Midkiff, 278 S.W. 683; State v. Murrell, 289 S.W. 859.

Graves, J. All concur, except Walker, C. J., who dissents.

OPINION

GRAVES

A glance at the sundry opinions filed in Division Two shows that this case has had a checkered career. See State v. Baldwin (3 opinions, not including the one upon which it came to Court en Banc), 281 S.W. 940 to 945. However, most of these matters, so earnestly pressed in Division Two, are as "water passed over the mill," and of no interest to this court. Historically it might be said, that defendant, charged with the crime of robbery in first degree, was convicted in the Circuit Court of the City of St. Louis, and upon appeal here, by the first opinion filed, his judgment of conviction was affirmed. Later the Division (by a majority vote of the judges) set aside the judgment of affirmance, of its own motion, and set the cause for another hearing. This was done at the judgment term, and was therefore an act within the power of the court to do. Not only within its power and jurisdiction, but it was a duty that should have been performed, if such majority became convinced that such judgment should be set aside in the interest of justice and right. In a civil case, in which there was neither excitement nor notoriety, we had the privilege of deliberately and coolly considering the very question involved in Division. In that case there was no motion for new trial timely filed, and what was filed was a paper by a party not of record in the case. We ruled that the court had the right to seek information from any source in the interest of the sanctity and right of its judgment. [See Ewart v. Penniston, 233 Mo. l. c. 709 and 712.] The foregoing is only by way of passing, because it has nothing to do with the issues pending here.

The instant cause was reargued, and a new opinion in Division was written (by the writer of the first opinion) and there being a dissent to this opinion (which again affirmed the judgment of the lower court), upon motion, and in due course, the cause reached this court. There is the evidence of the prosecuting witness that defendant was one of two parties who robbed him, so that the result of this appeal is dependent upon alleged procedural error. These, and the further detail of the facts, will be left to the opinion.

I. Although there is much in some of the opinions cited with reference to general assignments of error in a motion for new trial, we do not understand the learned Attorney-General as pressing that matter in this case. Some language, even in some recent opinions, cannot be fully endorsed, in view of the ruling in State v. Nolan, 111 Mo. l. c. 492 wherein Judge Gantt so well settles the question. He even answers in advance the great anxiety suffered by some members of this court,...