The State v. Brown

• Citation: 234 S.W. 785,290 Mo. 177
• Parties: THE STATE v. JOHN H. BROWN, alias DE PRIEST, Appellant
• Decision Date: 19 November 1921
• Court: United States State Supreme Court of Missouri

234 S.W. 785

290 Mo. 177

THE STATE v. JOHN H. BROWN, alias DE PRIEST, Appellant

Supreme Court of Missouri, Second Division

November 19, 1921

Appeal from St. Louis City Circuit Court. -- Hon. Benjamin J. Klene Judge.

Affirmed.

Thos J. Rowe, Jr., and Henry Rowe for appellant.

(1) The conflict in the testimony of the prosecuting witness, Ben Levin, and Special Officer Geo. Lawless, as to the place of the alleged robbery, the former's knowledge of the identity of defendant at the time of the robbery and the lapse of time from same until the arrest of the latter, is tantamount to impeachment. (2) The testimony of a witness who has been impeached is no testimony at all, and cannot be considered when determining the question whether there is substantial evidence to sustain the verdict. State v Francis, 199 Mo. 671. (3) The statement of the prosecuting witness to Special Officer Lawless, prior to the arrest of defendant, that he was robbed at Twenty-third and Franklin Avenue, and that prior to several days before the arrest of defendant when he saw the latter walking on the street near Eighteenth and Franklin Avenue, he had never before seen the defendant, is so inconsistent with and contrary to his testimony at the trial as to utterly destroy his credibility and demonstrate beyond peradventure that the verdict was the result of passion, bias and prejudice.

Jesse W. Barrett, Attorney-General, Robert J. Smith, Assistant Attorney-General, for respondent.

The evidence is sufficient for the case to go to the jury and the verdict should stand. State v. Underwood, 263 Mo. 685; State v. Bowman, 272 Mo. 498; State v. Maggard, 250 Mo. 340; State v. Concelia, 250 Mo. 420; State v. Taylor, 261 Mo. 228; State v. Rumfelt, 228 Mo. 452; State v. Sharp, 233 Mo. 295; State v. Fields, 234 Mo. 626.

RAILEY, C. White and Reeves, CC., concur.

OPINION

RAILEY, C. --

On March 19, 1920, the Assistant Circuit Attorney of the City of St. Louis, Missouri, filed, in the circuit court of said city, his verified information, charging therein that John H. Brown, alias De Priest, on December 27, 1919, at the City of St. Louis aforesaid, did feloniously make an assault on Ben Levin and rob him of $ 15, etc.

Defendant was formally arraigned, entered a plea of not guilty, was tried before a jury and, on April 27, 1920, a verdict of guilty was returned as follows:

"We, the jury, in the above entitled cause, find the defendant guilty of robbery in the first degree as charged in the information and assess the punishment at imprisonment in the penitentiary for five years."

The prosecuting witness, Ben Levin, a cutter for the Crawford & Meyer Cloth & Suit Company, at 9th and Washington Avenue, St. Louis, testified, in substance, that on December 27, 1919, about 8:45 p. m., he was walking to his home at 3200 Locust Street in said city; that when he got to 2900 Locust, the defendant stopped him there, and ordered him to go into the alley; that some one was walking with or near appellant just before this occurred; that defendant told Levin to raise his hands and stand still; that appellant then emptied the pockets of Levin, and took therefrom $ 15 in money; that defendant had a gun pointed toward Levin, and after he had taken his money, told him to walk straight ahead and to stay in the alley. Levin testified, that he got a good look at Brown, and identified him; that he had seen Brown before and had known his name for a couple of years; that a few weeks later, he saw defendant on the street, and had him arrested; that he saw Brown walking on 18th and Franklin Avenue, and identified him as the man who robbed him; that he had seen defendant frequently at a barber shop at 1500 Franklin Avenue; that he reported the robbery to Officer Wells, but did not at that time, tell him defendant's name; that he had seen Brown many times at Leo's barber shop.

George J. Lawless testified, in substance, that he was a special police officer, and assisted in the arrest of Brown on February 17th, about eight o'clock p. m. at 1813 Franklin Avenue, which was near 905 North 15th Street, where appellant said he lived; that he was present when Levin first saw Brown after the arrest; that Levin identified defendant as the man who held the pistol at the time he was robbed; that Levin had told witness about being robbed at 23rd and Franklin Avenue; that when Brown was arrested, he said it was a mistake, that he did not know anything about it; that defendant requested witness to take him out to Levin's house; that when they reached there, defendant was identified by Levin; that Levin did not give defendant's name in his report to the police station.

Appellant testified, in substance, that he was sometimes called De Priest, because his mother had been married twice; that his name is John H. Brown; that he never used the name of De Priest as an alias to deceive anybody, or hide anything; that he did not, on the night of December 27, 1919, hold up Levin and take money from him on 29th and Locust Street; that he was at the Wiehe Furniture Store that night; that he arrived at the last named place close to 7:30 o'clock, maybe a little before or a little after; that he remained there until 10:30; that he did not leave there between 7:30 and 10:30; that he remembered being at the Wiehe Furniture Store on the night of December 27, 1919, because he got a check that day for $ 175, and deposited it; that his bank book shows the deposit; that it was a part of his $ 265.50 of insurance money; that he and Mr. Doring talked about the check while he was in said store; that he exhibited his bank book showing the $ 175 deposit at that time. His attorney then asked this question:

"Q. Have you ever been convicted of any crime or offense? A. No, sir; never was."

Defendant's bank book was offered in evidence, showing the above entry.

On cross-examination of defendant, the following occurred:

"Q. You say you have never been convicted of a crime? A. No, sir.

"Q. Your name is John H. Brown, isn't it? A. Yes, sir.

"Q. And you are known also as alias De Priest? A. I have been; yes, sir.

"Q. And you are also known as Booby Brown, you are referred to as Booby Brown, and didn't you plead guilty on May 6, 1912, in Division No. 10 of this court, of assault to kill, and weren't you sentenced to one year in the city workhouse? A. I pleaded to malicious assault. . . .

"By Mr. Reeder: Q. You plead guilty and you were sentenced to one year in the city workhouse, weren't you? A. Yes, sir, for assault to kill.

"Q. And on April 10, 1911, before that, in this courtroom, didn't you plead guilty to exhibiting a dangerous and deadly weapon, and weren't you sentenced to fifty days in the workhouse? A. What are the dates?

"Q. April 10, 1911. A. I think that is right.

"Q. What do you mean by saying you were never convicted of a crime? A. I misunderstood that.

"Q. You didn't think I had the record, did you? A. I never thought anything like that, I thought it was about any theft or robbery, that is what I was answering, I didn't need to say no."

He said he was playing cards with other men at the Wiehe Furniture Store, on the night of December 27, 1919; that he could not remember other dates when he was playing cards at above store; that he remembers the date, because it was shortly after Christmas.

Eric Doring, Edgar Allison, Edward H. Rife and Harry Fox, each testified, in substance, that he was at the Wiehe Furniture Store on the night of December 27, 1919; that defendant Brown was there from 7:30 to 10:30 o'clock that night, and the...