The State v. Carolla

• Decision Date: 20 December 1926
• Docket Number: 27364
• Parties: The State v. Pete Carolla, Appellant
• Court: Missouri Supreme Court

292 S.W. 721

316 Mo. 213

The State v. Pete Carolla, Appellant

No. 27364

Supreme Court of Missouri

December 20, 1926

Appeal from Jackson Circuit Court; Hon. Charles R. Pence Judge.

Affirmed.

Rader & Rader, Paul S. Conwell and Jos. S. Brooks for appellant.

(1) Instruction 4 given in behalf of the State is erroneous. It is based on written statements admitted in evidence for the purpose of impeaching the witness Blue. It was error to attach the words: "Except as to such facts, if any, as you may find were admitted to be true by said witness in his testimony in this case." (2) Contradictory statements which may be shown for purposes of impeachment must be pertinent to the issue and not merely matters of opinion, but facts which would be competent evidence independent of any inconsistency with the testimony of the witness. State v Nave, 283 Mo. 35; Hamburger v. Rinkel, 164 Mo. 398; McFadin v. Catron, 120 Mo. 252; Wojtylak v. Coal Co., 188 Mo. 289; Schloemer v. Transit Co., 204 Mo. 115; 1 Greenleaf on Evidence (16 Ed.) 461, 462; State v. Patrick, 107 Mo. 161. (3) It was error on the part of the court to admit the statement marked "Exhibit D" in evidence. The statement was based on opinion and belief of the witness. Authorities last above. (4) Instruction 1 given by the court on behalf of the State is erroneous. It omits the word "feloniously" and does not contain equivalent language in defining robbery in the first degree. The statute and the indictment use the word feloniously. The instruction fails to comply with either. It does not even require the taking to have been unlawful or with a felonious intent. R. S. 1919, sec. 3307; State v. Rader, 262 Mo. 117; State v. Witt, 9 Mo. 665; State v. Gray, 37 Mo. 463; Kelly's Crim. Law & Prac., 657; 2 Bishop's New Crim. Law, sec. 840; 4 Blackstone's Comm., 232; 25 Cyc. 45. (a) The instruction does not even use the statutory words, or the words of the indictment, "rob and steal." State v. Weber, 188 S.W. 128. (b) The instruction refers the jury to the indictment, to ascertain the property taken. (c) The language of the instruction is duplicitous in this, that the statute provides, "taking the property of another from his person, or in his presence and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person." The statute does not conjoin the two facts as constituting the offense. It is error to state the separate facts of the statute by the use of the word "or." The instruction should use the conjunction "and," where the statute uses the word "or." State v. Grossman, 214 Mo. 233. (5) The court erred in overruling defendant's motion in arrest of judgment. (a) The indictment is invalid and void for the reason that the body selected as a grand jury, had no power to return said indictment. The grand jury was not selected in the manner provided in Sec. 6700, R. S. 1919, as amended by Laws 1921. (b) There are no officers as designated by the statute to perform the duties required by said Section 6700 as amended in 1921. (c) Said Section 6700 as amended 1921 is the only law providing for the selection and drawing of grand jurors in Jackson County. A court has no jurisdiction to impanel a grand jury except in accordance with the provisions of law. 17 Am. & Eng. Ency. Law, 1262. Courts cannot supply omissions in legislation nor afford relief because they are supposed to exist. United States v. Union Pacific Railroad, 91 U.S. 85; Hobbs v. McLean, 117 U.S. 579; United States v. Goldberg, 168 U.S. 103.

North T. Gentry, Attorney-General, and A. M. Meyer, Special Assistant Attorney-General, for respondent.

(1) Instruction 1 is a form approved in State v. Strada, 274 S.W. 34, and again in State v. Van Valkenburg, 285 S.W. 978. (2) Instruction 4, on the purpose of the admission of prior contradictory statements by witness Blue, was in addition to oral instructions given by the court at the defendant's request at the time the statements were admitted. It differs from the instruction on the same subject later offered by defendant only in permitting the jury to believe such part of those statements as were admitted by the witness while on the stand to be true statements of fact. (3) No error was committed in permitting State's counsel to question the witness Blue in regard to prior contradictory statements by him. The whole of the statements were read and introduced in evidence with omissions marked by the court as incompetent with permission given in open court for defendant to read the expurgated portions also. This is all that is required. Littig v. Heating Co., 292 Mo. 247; State v. Craft, 299 Mo. 345. The court heard evidence and found the statements admissible as voluntary matter. State v. Johnson, 252 S.W. 624. (4) Defendant's plea to the jurisdiction was properly overruled. (a) Upon defendant's own evidence he was seventeen years of age October 20, 1922, having been born October 20, 1905 in Italy. The crime in question was committed May 4, 1923, and defendant arrested on May 11th of the same year, at which time therefore, on defendant's own testimony he was seventeen years old. Section 2591 fixed the age at which offenders came within its provisions, at seventeen years. The Act of 1923, raising said age to eighteen years did not go into effect until June 25, 1923, or more than a month after the defendant was arrested. Laws 1923, pp. 153-157, 401; Mo. Constitution, art. 4, sec. 36. Further, the court, upon conflicting evidence, overruled defendant's plea to the jurisdiction, necessarily deciding that defendant was not a minor under the age of eighteen at the time of the crime and arrest. This, it was within the power of the court to do. State ex rel. Corella v. Pence, 262 S.W. 361; Ex parte Rush, 264 S.W. 689.

Higbee C. Railey, C., not sitting.

OPINION

HIGBEE

The defendant was convicted of robbery in the first degree, in the Circuit Court of Jackson County, upon an indictment returned by the grand jury September 7, 1923, was sentenced to imprisonment in the penitentiary for a term of thirty years, and appealed.

The evidence for the State showing that the prosecuting witness was robbed as charged in the indictment is not disputed; it was corroborated by defendant's witness John Howard Blue. While the prosecuting witness positively identified the defendant as the robber, Blue testified that he could not identify him as the robber.

John W. Clohse had lived at 2920 Guinotte Street, Kansas City, Missouri, for thirty-five years. He had a barber shop and sold tobacco and candy on the first floor of the building at that number. He cashed checks for the accommodation of his customers. On May 4, 1923, about an hour before noon, he took a number of checks to the Merchants' Bank at Fifth and Walnut streets and cashed them, receiving $ 670 in bills of one, five, ten and twenty-dollar denominations. These he made into two rolls, placing one roll in the top of each of his socks. He then went to the National Bank of Commerce where he remained about an hour. He then started home in his touring car which was driven by Blue, his employee. Clohse sat on the front seat at the right of the driver. On the way home they drove over a viaduct across Chestnut Street, and turned to the right at a drive leading into Chestnut Street. A car was following them which, as this turn was made, ran into the right side of Clohse's car, the side on which Clohse was sitting. A man riding on the fender of the other car jumped onto the fender of Clohse's car and, pointing a revolver at Clohse, ordered Blue to drive on into the driveway above mentioned. This driveway ran through a cut. When in this cut the robber ordered Blue to stop the car and, covering Clohse with his revolver, took the two rolls of bills from Clohse's socks, and took from his person a diamond stud, a Masonic emblem studded with diamonds, a watch and chain, and from Clohse's finger a diamond ring containing a stone weighing about a carat and a quarter. These articles, aside from the money, were of the value of about $ 900. This occurred about noon on a clear day in Jackson County, Missouri.

Clohse testified that he saw the robber's face distinctly during the time of the robbery and identified him as the defendant. The defendant took the keys of Clohse's car and drove rapidly away with his two companions. The robbery was promptly reported to the police, with a description of the robber.

A week later, on May 11th, the defendant and two other Italians were observed by the police driving recklessly in a Buick car. The police stopped the car and arrested them. The defendant, who gave his name as Joe Accurso, or Caruso, was sitting on the front seat by the driver. He had a 38-caliber "special" revolver stuck behind the cushion at his right side, and fourteen 38-caliber "long" cartridges in his hand.

The defendant testified that he had been employed for some time as an office boy in the Federal Reserve Bank in Kansas City; that he was afflicted with a bad cough and was spitting blood; that he resigned and, about January 2, 1923 went to southern Texas for his health and remained there on Frank Palermo's ranch until about May 5th or 8th (the exact date he could not remember) when he returned to his home in Kansas City with his father and mother, brother and sister, and was arrested after his return, and that he knew nothing about the robbery. He was corroborated by his mother and Frank Carolla, a younger brother, and by Frank Palermo, as to his stay in Texas. Palermo, who lives in Kansas City, visited his family on his ranch on January 17, 1923, and again at Easter; defendant was there at those times and returned to Kansas City; he saw him in Kansas City some time in May. No one testified to having seen defend...