The State v. Simon

• Citation: 295 S.W. 1076,317 Mo. 336
• Decision Date: 03 June 1927
• Docket Number: 27891
• Parties: The State v. Joseph Simon, Appellant
• Court: United States State Supreme Court of Missouri

295 S.W. 1076

317 Mo. 336

The State v. Joseph Simon, Appellant

No. 27891

Supreme Court of Missouri

June 3, 1927

Appeal from Circuit Court of City of St. Louis; Hon. George E Mix, Judge.

Affirmed.

Verne Lacy and J. A. Linders for appellant.

(1) The court should have sustained the demurrer offered at the close of the State's case and at the close of the whole case. Brill's Encyclopedia of Criminal Law, 184, par. 94; State v. Patterson, 116 Mo. 505; State v Tate, 47 S.W. 792. (2) It is the duty of the judge of a criminal court, as well as of all other courts of record, to instruct the jury on all the law arising in the case. State v. Vinso, 171 Mo. 578; State v. Bond, 191 Mo. 555; State v. Hardy, 7 Mo. 303; 4 Blackstone's Commentaries, p. 361; State v Burrell, 252 S.W. 709; State v. Conway, 241 Mo. 271. (3) The evidence in this case was insufficient to justify the submitting of the case to the jury. The proven circumstances are insufficient without basing an inference on an inference, which is not permissible. State v. Lackland, 136 Mo. 26; United States v. Ross, 92 U.S. 281; 16 C. J. 765; Vernon v. United States, 146 F. 121. (4) The court erred in permitting the defendant to be cross-examined upon matters not touched upon or growing out of his examination in chief. Sec. 4036, R. S. 1919; State v. Pfeifer, 183 S.W. 337; State v. Goodwin, 271 Mo. 71, 191 S.W. 725; State v. Jones, 197 S.W. 156; State v. Sharp, 233 Mo. 286; State v. Webb, 254 Mo. 434. (5) When defendant offers himself as a witness, his previous conviction may be shown only to affect his credibility. Manbach v. United States, 11 Fed. (2nd) 221; Mercer v. United States, 14 Fed. (2nd) 283.

North T. Gentry, Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.

(1) The State did prove an intention to rob, and therefore the court ought not to have sustained the demurrer to the evidence. It was not necessary for the State to prove that defendant demanded money. "Any conduct which, if followed by taking property, would have been robbery, will be evidence of an attempt to rob." Under the circumstances of this case, it will be found that the intention of the defendant was to rob. Kelley's Cr. Law & Procedure (3 Ed.) 514; People v. Kuhn, 125 N.E. 882; State v. Gulliver, 142 N.W. 951; Tyson v. United States, 122 P. 733; Wingate v. State, 152 S.W. 1078. (2) Evidence as to a former conviction is admissible. Secs. 4036, 5439, R. S. 1919; State v. Hillebrand, 285 Mo. 299; State v. Howe, 287 Mo. 11; State v. Wilson, 242 S.W. 888. Because of the foregoing statutes, it is not necessary to instruct the jury that evidence of a prior conviction of defendant must be considered only for the purpose of affecting his credibility as a witness. The statute allows the proof of conviction of other crimes because it affects his credibility as a witness. (3) The state did not rely upon circumstances alone to convict the defendant. Therefore, an instruction on circumstantial evidence should not be given. State v. Nerzinger, 220 Mo. 47; State v. Hubbard, 223 Mo. 84.

OPINION

Blair, J.

Appellant was convicted of assault with intent to rob, as defined by Section 3262, Revised Statutes 1919. The jury fixed his punishment at imprisonment in the penitentiary for a term of five years. He has appealed from the judgment entered upon the verdict.

As it is strenuously urged that the evidence was not sufficient to make a submissible case, a full statement of the rather meager testimony is justified. The scene of the alleged assault was the southwest corner of Thirteenth Street and Washington Avenue, in the city of St. Louis. The time was fixed between the hours of two and three o'clock, P. M., January 15, 1925.

The State's evidence tended to show that Grafton P. Clark, the prosecuting witness, was cashier of Rice-Hutchens Shoe Company, located near Thirteenth and Washington. He had been to the bank and procured the shoe company's pay roll of about $ 1400. He had the money in his inside coat pocket and was wearing an overcoat, which was buttoned up. As Clark reached the southwest corner of said streets, a man, whom Clark afterward positively identified as appellant, jumped out of an automobile parked at the curb. The engine of said automobile was running and an alleged confederate of appellant sat behind the steering wheel. Appellant shoved a pistol against Clark's body and said: "Get into this car, get into this car." Clark struggled with appellant. The man in the automobile said: "Hit him." Clark dodged and the blow missed his head. He jerked loose from appellant and thus escaped. Appellant then jumped into the waiting automobile and escaped.

There was evidence tending to show that the other occupant of the automobile was one James Michaels. He was charged jointly with appellant. For some undisclosed reason Michaels was not present at the trial, and the case was continued generally as to him and proceeded against appellant alone.

One Harbough corroborated Clark concerning the assault. He later identified Michaels as the man sitting at the wheel of the automobile and identified Michael's automobile as the one he saw at the scene of the assault. One Robbins saw Clark struggling with a man who had a revolver. He saw this man strike at Clark and then jump into the automobile, which was at once driven rapidly away. He did not undertake to identify the man who assaulted Clark. A police officer, Virgil Rowland, arrested appellant and Michaels. He testified that Michaels owned and drove the automobile identified by Harbough as the one used at the scene of the assault.

Appellant testified in his own behalf and contented himself with a categorical denial of his presence at or participation in the alleged assault. He produced an aunt and other relatives and two men working about his aunt's home who testified to his presence in a different part of the city at the time of the alleged assault upon Clark. If this alibi testimony was the truth, appellant could not have been present at and participated in the assault at the time fixed by Clark and other witnesses for the State. Appellant admitted that he had been previously convicted of the crime of larceny.

The contention that a case of assault with intent to rob was not made out by the evidence rests upon the proposition that "at no time in this record is there a scintilla of testimony attributing any language of [to] this defendant indicative of an intent to rob." It is contended that the jury was not authorized to draw the inference of an intent to rob from the evidence tending to prove that appellant jumped out of the automobile, seized Clark, shoved a pistol against his body and commanded him to "get into this car;" that the inference may just as logically be drawn from such proof that appellant assaulted Clark with intent to kill him or kidnap him; that the conclusion that appellant intended to rob Clark rests entirely upon speculation and supposition; that the proof, therefore, was insufficient to support a finding that appellant had the intention to rob Clark.

The record is entirely barren of proof of any words spoken by appellant which may be said to characterize his act as done with intent to rob, rather than to commit some other felony upon Clark. If the jury was entitled to draw the inference of an intention to rob, it must be that it was entitled to do so from all the facts and circumstances, including the proof of the words shown to have been spoken by appellant.

Appellant relies on State v. Tate, 145 Mo. 667, 47 S.W. 792, as a controlling decision by this court to the effect that the proof in the case at bar was insufficient. In that case, one South pushed open the door of the home of the prosecuting witness, Meadows, walked in and told Meadows to throw up his hands. As Meadows started to get up out of his chair, South shot him and ran away. Tate was charged jointly with South, took a severance and was convicted of assault with intent to rob. There was no proof whatever that Tate was about the premises when South shot Meadows and no sufficient proof of circumstances tending to show that he had any connection with South's act. In disposing of the case, Burgess, J., said:

"It is not claimed by the State that the conviction of defendant can be maintained upon the ground of the commission by him in person of an assault upon Meadows with intent to rob him of his money or property, but that the assault was committed by South for that purpose in pursuance of an agreement and understanding between him and the defendant. But this contention finds no ground for support in the facts disclosed by the record. No such preconcerted plan was shown. Nor was Tate present at the time of the assault by South.

"The evidence does not even show that South committed the assault with intent to rob. Not a word seems to have been said by him at the time as to what his purpose was. No demand for money or property was made by him and while it may be conjectured that his purpose was for robbery, the judgment cannot be permitted to stand upon that theory. But even if the evidence showed that South made the assault with intent to rob, the evidence tending to show defendant's connection with it was purely circumstantial and entirely insufficient to justify the verdict. In fact, there was an entire failure of proof as to the offense of which defendant was convicted, and for that reason alone we reverse the judgment and remand the cause." (Italics ours.)

It is apparent that the controlling reason for reversing the judgment was lack of sufficient proof that Tate was connected in any way with the act of South, regardless of the crime of which South was guilty. Such was the "reason alone" upon which the judgment was reversed. What was there...