The State v. Sydnor
| Decision Date | 09 December 1913 |
| Citation | 161 S.W. 692,253 Mo. 375 |
| Parties | THE STATE v. RICHARD SYDNOR and BEN FOSTER, Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Kent K. Koerner Judge.
Affirmed.
William E. Fish and William P. Hill for appellant.
John T Barker, Attorney-General, for the State; Paul P. Prosser of counsel.
(1) The separate verdicts are responsive to the issues, and are amply sufficient to support the respective judgments entered in accordance therewith. State v. King, 194 Mo. 494; State v. Grossman, 214 Mo. 243; State v Bishop, 231 Mo. 415. (2) The verdicts are supported by abundant evidence of the defendants' guilt. No demurrer was offered by the defendants to the evidence on the part of the State, nor at the close of all the testimony in the case; and the complaint made in their motion for a new trial that the verdicts are against the evidence is only "the natural appendix to a lost cause." The positive identification of the defendants by the prosecuting witness, their admitted presence in the immediate neighborhood at the time of the commission of the offense, the finding of the ten-dollar bill on the defendant Sydnor crumpled up in a card case and separate and apart from other money in his possession, the discovery of the watch, hidden at a place in the restaurant near which the defendants had been seen to stand just prior to their arrest; all these facts leave little room for any serious consideration of their defense of alibi. However, it was the special province of the jury to pass upon the issue thus presented, and where there is substantial evidence to support their verdict this court will defer to the finding of the jury and the trial court. State v. Alexander, 184 Mo. 272; State v. White, 189 Mo. 349; State v. Smith, 190 Mo. 723; State v. Newman, 245 Mo. 499. (3) As the second ground of their motion for a new trial, the defendants complain that "the court failed to instruct the jury as to all the law applicable to the case." No instructions were requested by the defendants, nor does it anywhere appear in the record that the attention of the trial court was called to any particular point omitted in the instructions given. The general specification contained in the motion for a new trial is insufficient, in that it does not call the attention of the court to any particular question of law on which it is claimed the court failed to instruct. State v. Conway, 241 Mo. 291; State v. Dockery, 243 Mo. 599; State v. Sykes, 248 Mo. 712.
Convicted of the crime of robbery in the first degree the defendants appeal from a judgment of the circuit court of St. Louis City fixing their punishment at five years each in the penitentiary.
John Herbert, the prosecuting witness, testifying on behalf of the State, says that on the morning of January 1, 1913, about the hour of 1:30 a. m., he was robbed by defendants near the corner of Fairfax and Sarah streets in St. Louis City, a locality inhabited mostly by negroes.
About two or three blocks from the scene of the alleged robbery is located a Chinese restaurant, and about the same distance, though in a different direction, is located the residence of a colored man by the name of Lang, who gave a New Year's party on the evening of December 31, 1912. These places figure extensively in the evidence of the witnesses.
The prosecuting witness, a railroad brakeman, testified that he spent most of the evening of December 31, 1912, and until 1 a. m., January 1, 1913, sitting with another railroad man by the name of Fitzgerald in a saloon on Whittier street, where they smoked several cigars and drank a few glasses of beer. When the saloon closed at 1 a. m. the prosecuting witness walked to the corner of Fairfax and Sarah streets, intending to take a car and go home; that while he was at this corner under a very bright street lamp, the defendants came along and, after asking him if he "had been to the white folks' party," seized him by the arms, dragged him about a half block or more and into an opening between two buildings, and there the defendant Foster held him and defendant Sydnor took from him a ten-dollar bill, some small change and an Ingersoll watch; that while they were thus pulling him along by the arms they told him that if he holloed they would kill him.
After he was robbed Mr. Herbert hunted up a policeman, and the two went to the Chinese restaurant before mentioned. There the policeman started to write down a description of the parties who committed the robbery, and while he was doing so the defendants entered the restaurant. The prosecuting witness recognized them at once, but the policeman took the prosecuting witness out in front of the restaurant and questioned him closely as to the identity of the parties before making the arrest. When arrested defendant Sydnor had in one of his pockets a ten-dollar bill "crumpled up" in a card case; also a two-dollar bill and some small change in another pocket. No money was found on defendant Foster.
George Ernest was in the restaurant when defendants were arrested. He testifies that on the night after the arrest he was again in the restaurant and found a watch where it had been hidden among some chop suey crates. The watch thus found was still running and corresponded in make and date of purchase to the one taken from Herbert by the parties who committed the robbery. The Chinaman who operated the restaurant would not claim the watch; apparently it had been placed where it was found by some one not connected with the restaurant.
The evidence does not show that the defendants placed this watch where it was found, but only that it was possible for them to have done so just before they were arrested.
On the part of defendants there was testimony of two witnesses that defendants attended a "watch party" at a negro church located on Elliott and Wash streets until after the hour of midnight of December 31, 1912, and that they subsequently attended the New Year's party at Lang's residence. Two witnesses swore that defendant came to Lang's party at 1:20 a. m. and remained there until after 3 a. m., of January 1,...
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