Opinion
December 11, 1929.
1. ROBBERY: In First Degree: With Deadly Weapon. The statute (Sec. 3307, R.S. 1919) defines robbery in the first degree as feloniously 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; and robbery in the first degree may be perpetrated by the use of a deadly and dangerous weapon, and is none the less robbery in that degree because such weapon is used, provided the other elements are present.
2. ____: ____: ____: Punishment: Act of 1927: Title: New Crime. The title of the Act of 1927, Laws 1927, page 174, relates solely to punishment for robbery, which is the subject clearly expressed therein; and the provision in the act itself that "every person convicted of robbery in the first degree by means of a dangerous and deadly weapon shall suffer death," etc., is germane to the title and does not go beyond the one subject expressed in it, though to the prior definition of robbery in the first degree is added the words "by means of a dangerous and deadly weapon." The act does not make that a crime which was not previously a crime; it adds no new element to robbery in the first degree; it only prescribes a more severe punishment for robbery in the first degree when that crime is committed by a dangerous and deadly weapon.
3. EVIDENCE: Excluded: Offer of Proof. A complaint that the trial court refused to permit defendant to introduce evidence pertinent to his defense, is of no avail on appeal unless appellant, upon such refusal, made an offer of the proof.
4. ____: Identification: Inflamed Face. An inflammation of the face, caused by boils and abscesses, progresses rapidly, and evidence tending to show the condition of defendant's face on the day after the robbery, in refutation of the identity of defendant as the robber, is inadmissible, unless it is shown that his chin, concealed by a handkerchief by the robber, was in the same relative condition on the next day that it was at the time of the robbery.
5. ____: ____: Color of Shoes. The fact that defendant had previously bought or owned black shoes, or that he owned the same shoes on the day of the robbery, does not tend to show that the robber did not wear tan shoes on the night of the robbery.
6. ____: ____: ____: Corroboration. Where defendant wore tan shoes when he was placed in jail on the next day after the robbery, testimony that he wore tan shoes during all the time he was in jail is not corroborative of other testimony that he wore black shoes on the night of the robbery.
7. ____: Distance: Guess. The court does not err in striking out testimony as to distance which is a mere guess.
8. ____: No Exceptions. Where the court struck out all parts of irrelevant questions asked by the prosecuting attorney on the cross-examination of defendant's witness to which objection was made, thereby leaving them harmless, and defendant saves no exception and asks for no additional relief, neither the ruling nor the propriety of the questions is for consideration on appeal.
9. REMARKS OF COURT: No Exceptions. Remarks of the court during the progress of the trial relating to conflicts in the testimony and to the kind of clothes defendant wore while confined in jail, if no objection is made and no exception is saved thereto, are not for consideration on appeal.
10. DEFENDANT'S EVIDENCE: Issue of Fact. It matters not how many unimpeached witnesses testify that defendant was not present at the place the crime was committed, if there is substantial and positive evidence for the State that he was present and committed the crime, the issue is one of fact to be determined by the jury, and with their verdict of guilty the appellate court cannot interfere.
11. INSTRUCTIONS: Covered by Others Given. It is not error to refuse instructions asked by defendant which correctly, as applied to the facts in evidence, declare the law on the subjects of presumption of innocence, the burden of proof and the defense of alibi, where other instructions given fully cover the subjects.
12. NEW TRIAL: Newly-Discovered Evidence: Cumulative. It is not error to refuse a new trial on the ground of newly-discovered evidence where the facts set forth in the affidavits of the witnesses supporting the motion are either cumulative of the testimony introduced on the trial, or tend to impeach a State's witness, and defendant, neither by his motion, nor by an extraneous affidavit, makes oath that he used diligence or that the newly-discovered evidence came to his knowledge since the trial.
13. ____: ____: Confession of Guilt by Others: Hearsay. Statements in affidavits, attached to the motion for a new trial, that the affiants had conversations with other men, later sentenced and confined in the penitentiary, to the effect that they committed the robbery for which defendant has been convicted, are mere hearsay, and could not be admitted in evidence on a retrial. To be of any avail the affidavits should be made by the men confined in the penitentiary themselves, to the effect that they committed the robbery.
14. ____: ____: ____: Oath of Defendant. To support a motion for a new trial on the ground of newly-discovered evidence, or on the ground that others have confessed that they committed the crime for which defendant has been convicted, the defendant himself should state under oath that he had used diligence to discover the evidence set forth in the affidavits of the other affiants and that the facts set forth in them has come to his knowledge since the trial. His sworn statement is necessary to refute the inference that he had prior knowledge of the evidence on which he relies to sustain his motion for a new trial.
Appeal from Livingston Circuit Court. — Hon. Ira D. Beals, Judge.
AFFIRMED.
Taylor Taylor for appellant.
(1) The motion to quash the information should have been sustained. Secs. 3307, 3310, R.S. 1919; Laws 1927, p. 174; Sec. 28, Art. 4, Mo. Constitution; State v. Persinger, 76 Mo. 346; McGrew v. Railroad, 230 Mo. 567; 36 Cyc. 1020; St. Louis v. Wortman, 213 Mo. 141; State v. Sloan, 258 Mo. 314. (2) The objection to the introduction of evidence should have been sustained. Authorities supra. (3) The court erred in sustaining objections to competent, material and relevant testimony offered by defendant. (a) Defendant offered evidence that his face was in bad condition the evening prior to the robbery and that he went to Owens's store to get medicine for it. And that it was still in bad condition shortly after the robbery. (b) The question of tan shoes, injected for the first time at the trial, is important on the question of identification. Defendant offered testimony to the effect that he had worn black shoes before the evening of the robbery, on that evening, on the day he was arrested and during all the time he was in jail. The court sustained the State's objections to this testimony and instructed the jury to disregard it. (c) The defendant, in answer to a question as to how far it was from the Owens store to the Owsley store, said: "Oh, I should judge possibly ten or twelve blocks; maybe farther. I don't know, because I haven't seen Owsley's store that I know of. There was two there, and I don't know one from the other." The court struck out the answer and directed the jury to disregard it. (4) In his cross-examination of Mrs. Giest the prosecuting attorney said, "And you are a kind of sweetheart of John Owens, aren't you?" Defendant objected, and he withdrew the remark, but immediately thereafter said: "And you kind of run around with the Curtises? A. No, sir. Q. And John Owens and that crowd?" The court on objection ordered the words "that outfit" stricken out. John Owens was not a witness and in no way connected with the trial. (5) The court during the testimony of Chief of Police Dorney made the following prejudicial remarks in the presence of the jury: "I don't either. There are some conflicting statements, but as far as the witness Owsley's testimony, he was positive in his identification." And again while Sheriff Dowell was testifying, "It would seem to me, of course, as to what he had on when he was taken to the jail would be competent, but after he was there he might have had them changed, and no doubt he did have a change of clothing." (6) The alibi of defendant was proven by five unimpeached witnesses, in addition to the defendant. (7) The affidavits attached to the motion for new trial show that competent, material and relevant testimony can be introduced on behalf of defendant at another trial, and would in all probability result in a verdict for defendant. (8) Defendant's instructions numbered 3, 4 and 5 should have been given.
Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.
(1) The information is sufficient both as to form and substance. It correctly charges robbery in the first degree, by means of a dangerous and deadly weapon. Sec. 3307, R.S. 1919; Sec. 3310, R.S. 1919, as repealed by Laws 1927, p. 174; State v. Reich, 239 S.W. (Mo.) 836; State v. Kilcullen, 301 Mo. 285; State v. Affronti, 238 S.W. (Mo.) 109; State v. Taylor, 18 S.W.2d 477. (a) The allegation "with a dangerous and deadly weapon" was not improper; it is not an element of the offense of robbery in the first degree, but Sec. 3310, Laws 1927, p. 174, authorizes its inclusion in the information. State v. Kilcullen, supra; State v. Collins, 266 Mo. 98. (b) Sec. 3310, Laws 1927, p. 174, is not violative of Sec. 28, Art. 4, Mo. Constitution. The subject thereof is expressed in the title. It does not contain more than one subject. State v. Miller, 45 Mo. 495; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Vandiver, 222 Mo. 206; Elting v. Hickman, 172 Mo. 237; Lynch v. Murphy, 119 Mo. 163; State v. Hurley, 258 Mo. 275; State ex rel. v. Roach, 258 Mo. 541; State ex rel. v. Drabelle, 258 Mo. 568; St. Louis v. Wortman, 213 Mo. 131; State v. McEniry, 269 Mo. 228; State ex rel. v. County Court, 128 Mo. 427; State ex rel. v. St. Louis, 241 Mo. 231; Witzmann v. Railroad, 131 Mo. 612; Burge v. Railroad, 244 Mo. 76. (c) The section does not attempt to broaden or add to the elements in the crime of robbery in the first degree as defined in Sec. 3307, R.S. 1919. (2) Requested instructions covered by given instructions need not be given. The court's instructions numbered 3 and 4 correctly declare the law. State v. Williams, 309 Mo. 155; State v. Baldwin, 281 S.W. 940. (3) The allegation of the motion for new trial on the proposition on newly-discovered evidence is not sufficient to warrant a review of the point in this court. It states only conclusions and fails to show the exercise of reasonable diligence on the part of the defendant. The affidavit supporting the allegation contained only cumulative matters and there is nothing therein which would lead one to believe that a different result would be obtained if the case was sent back for new trial. State v. Smith, 247 S.W. (Mo.) 157; State v. Walker, 50 Mo. 322; State v. Eason, 18 S.W.2d 77. (4) Appellant is in no position to complain that the court erred in sustaining the State's objections to testimony which he sought to elicit from certain witnesses. Where the trial court refuses to permit defense witnesses to testify to certain propositions objected to by the State, the defendant must, of necessity, make his offer of proof before this court will review the alleged error. State v. Deviney, 278 S.W. (Mo.) 726; State v. Wagner, 279 S.W. (Mo.) 23; State v. Farrar, 285 S.W. (Mo.) 1000. (5) Appellant is in no position to complain of the prosecuting attorney's examination of witness Mrs. Giest. The remarks objected to were withdrawn, and those not withdrawn were stricken out by the court. (6) Defendant is in no position to complain that he was surprised by the testimony of State's witnesses Owsley, Mann and Dorney in that they testified at the trial that defendant wore freshly shined tan shoes on the night of the robbery. No request for a continuance was requested. This is essential to a review of the point. Failure of request is waived. State v. Whitsett, 232 Mo. 526; State v. Glon, 253 S.W. 365.
In an information filed by the prosecuting attorney in the Circuit Court of Livingston County, defendant was charged with robbery in the first degree with a dangerous and deadly weapon, to-wit, a pistol. The jury returned a verdict finding defendant guilty of robbery in the first degree as charged in the information, and assessed his punishment at fifteen years in the State penitentiary. An appeal was taken from the judgment entered on the verdict.
The evidence developed on the part of the State warrants the finding that one I.B. Owsley operated a grocery store in the city of Chillicothe, Livingston County. The store was sixty feet deep. On the night of November 15, 1927, about eight P.M., Owsley and one Charles Mann, a farmer, were present in the grocery store, sitting near the stove about the middle of the store, chatting and conversing. At this juncture two men came into the store and said, "Stick them up! Stick them up!" Owsley said that one of the men was defendant and he had a pistol. The men forced Owsley and Mann to lay flat on the floor, faces downward. They took from the cash register the sum of $32.97 belonging to Owsley. They also searched Owsley and Mann. The robber was dressed on that occasion in blue overalls, a jumper or lumber jacket with a grayish cast, a light cap and freshly-shined light tan shoes. Defendant, when Owsley saw him in the police station the next day, was dressed in the same habiliments. On being asked the question, "And you are positive that he is the man?" meaning defendant, Owsley iterated, "Absolutely." Owsley said that he had a white handkerchief tied over his face, which covered it from below the nose down, that is, his mouth and chin. He stated that he could see his face sufficiently to identify him.
Charles Mann testified for the State. He said that defendant was the man who held the pistol and who covered them with it. Defendant had a white handkerchief under his nose and over his mouth, that hid the lower part of his face, and was dressed in blue overalls and a plaid lumber jacket of grayish hue. He wore light tan shoes freshly shined, and carried a bright new gun. When he saw defendant the next day in the police station, he identified him by the part of his face he could see, by his clothes and especially by his walk, for, when defendant left the store the night of the robbery, he saw him walk up the aisle to the front door. Mann said that his walk was the last thing that clinched the identification of defendant as the robber in his mind, as the clothes tallied and the features tallied, and then when he saw the gait he was thoroughly satisfied. He further said that the robber was a stoop-shouldered man, and that helped to identify defendant. Both Owsley and Mann positively identified defendant as one of the robbers that held them up that night.
The chief of police, for the State, testified that he saw defendant on the afternoon of November 15, 1927, and defendant was garbed in a lumber jacket, overalls and a light cap. During the day of November 16th, while defendant was in the police station, he was asked how he was dressed the evening previous, and he said, "Just the same as I am now." Defendant, so the chief said, on the sixteenth had on tan shoes, and defendant told him at that time that he had had them shined the evening before.
The proof on behalf of defendant tended to establish an alibi. There was much testimony that tended to contradict the testimony of Owsley and Mann relative to their identification of defendant as the man who committed the robbery. A portion of this testimony tended to show that Owsley said the next morning before defendant was apprehended, that he could not tell exactly what the men wore the night of the robbery. Other portions of the testimony tended to show that Owsley, even after he saw defendant in the police station, was uncertain as to his identity with the man who robbed him. Other portions of the testimony tend to contradict the evidence of the State with respect to the description of the clothing defendant wore, especially the statement that defendant, while in the police station awaiting identification, had on tan shoes. It further tended to show that Owsley and Mann could have been mistaken as to the identification of defendant.
In rebuttal, the evidence for the State tended to show that defendant's general reputation for morality was bad. Other facts, pertaining to the issues raised, will be adverted to in the opinion.
I. It is said that the motion to quash the information should have been sustained, on the ground that Section Title: Robbery 3310, page 174, Laws 1927, was in First Degree: unconstitutional, because the enactment of said Additional section violated Section 28, Article IV, of the Punishment. Missouri Constitution, which provides that "no bill . . . shall contain more than one subject, which shall be clearly expressed in its title."
Section 3307, Revised Statutes 1919, defines first degree robbery as feloniously 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. Section 3310, Revised Statutes 1919, prescribed the punishment for first degree robbery at imprisonment in the penitentiary for not less than five years. It also prescribed the punishment for second and third degree robbery. In 1927, the General Assembly repealed Section 3310 as it then existed and enacted a new section (Laws 1927, p. 174), designated as Section 3310, which reads:
"Every person convicted of robbery in the first degree by means of a dangerous and deadly weapon shall suffer death, or be punished by imprisonment in the penitentiary for not less than ten years, and every person convicted of robbery in the first degree by any other means shall be punished by imprisonment in the penitentiary for not less than five years; every person convicted of robbery in the second degree shall be punished by imprisonment in the penitentiary not exceeding five nor less than three years; every person convicted of robbery in the third degree shall be punished by imprisonment in the penitentiary not exceeding five years."
The title to Section 3310, page 174, Laws 1927, reads:
"An act to repeal Section 3310, Chapter 24, Article 5, of the Revised Statutes of the State of Missouri of 1919, in relation to punishment for robbery, and enacting in lieu thereof a new section to be known as Section 3310, relating to the same subject."
A reading of Section 3307 advises that it defines robbery in the first degree. This degree of robbery may result from either violence to the person or the putting in fear of some immediate injury to the person. Robbery in the first degree may be perpetrated by the use of a deadly and dangerous weapon, and it is none the less robbery in that degree under Section 3307 that such weapon was used. Consequently the use of such weapon in the perpetration of a robbery is included within the meaning and scope of the crime denounced by Section 3307. In other words, one may, by the use of a dangerous and deadly weapon, provided the other elements are present, commit robbery in the first degree.
It is evident from a reading thereof that the title to new Section 3310 (Laws 1927, p. 174) relates to punishment for robbery. The title to the act advises that the act relates to and provides punishment for robbery. The act itself does not go beyond this, for it does nothing more than prescribe punishment for robbery. The title and subject are germane, each one to the other. The bill or statute contains only one subject, that of punishment for robbery, and it is clearly expressed in the title. Robbery in the first degree, if the other elements are present, comprehends an act committed with or without a dangerous and deadly weapon, as the facts develop; and that a greater punishment is prescribed for robbery in the first degree with a dangerous and deadly weapon than without the use of such, does not affect the relation of the title and the subject to each other, for both the title and subject relate to one concept, that of punishment for robbery. The new Section 3310 does not make that a crime which was not a crime before. Both before and after the passage of new Section 3310, it was robbery in the first degree to feloniously take 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, by the use of a dangerous and deadly weapon. While the punishment prescribed in the act for the use of a dangerous and deadly weapon in the perpetration of first degree robbery is more severe and greater than a robbery committed without its use, yet the subject was single, that of punishment for robbery, and it was clearly expressed in the title. The power of the General Assembly to prescribe different punishments for first degree robbery, depending upon the gravity of the offensive act, is plenary. This ruling also disposes of the objection to the introduction of evidence.
II. (a) The complaint is made that the court erred in refusing to permit the defense to show that, on the evening previous to the robbery, defendant's face was in bad condition, as No Offer the result of a boil or abscess. Testimony that he of Proof. bought a bottle of liniment at a store on that evening went in without objection. While the evidence was probably admissible for what it was worth, in corroboration of testimony that he did not commit the robbery and to refute the testimony of the State's witnesses relative to identification, yet the complaint is not tenable in this court because of the absence of an offer of proof. [State v. Farrar, 285 S.W. 1000.]
(b) It is also charged that error obtained in refusing to permit defendant to show the condition of defendant's face while incarcerated in the jail. The only offer of proof made Inflamed was that made with respect to the condition of Face. defendant's face on the evening of November 16th, the day succeeding the robbery. The offer involved an examination of defendant made by the county physician on that day. As inflammation, caused by boils or abscesses, progresses in an interval of time, the evidence was inadmissible to show the condition of the face approximately a day after the alleged robbery, in that it was not shown that defendant's chin, at the time of the examination, was in the same relative condition that it was at the time the robbery was perpetrated.
(c) The State's witnesses testified in their identification of defendant that, on the night of the robbery, he wore tan shoes and that, when they observed him the next day at the jail, he wore tan shoes. Defendant's testimony shows that on the Tan day of the robbery he wore black shoes, and it may be Shoes. inferred from his testimony that he did not at that time possess tan shoes. Defendant offered to show by a shoe dealer that, in September or October previous, he bought a pair of low black shoes from him and had another pair repaired, and that the shoes defendant wore at the trial were the same shoes sold him by the dealer. The fact that defendant had previously bought or owned black shoes, or that he owned them on the day of the robbery, would not have tended to show that the perpetrator of the robbery did not wear tan shoes. Moreover, the only relative and material question related to whether defendant wore tan shoes on the night of the robbery, not whether he ever wore such shoes.
(d) Defendant, on the cross-examination of a witness for the State, elicited the fact that defendant wore tan shoes when the witness first confined him in jail. The trial court While in sustained an objection to the question, "Well, now, Jail. what kind of shoes has he been wearing, did he wear all through the time he was in jail?" The inquiry involved a period too remote from the time of robbery to be pertinent. Additional facts were necessary to render this line of inquiry corroborative of the testimony that defendant wore black shoes on the night of the robbery, resulting that the facts and circumstances involved did not justify the inquiry.
(e) Defendant was asked how far it was from John Owens's store to the Owsley store. He answered that he judged it to be a distance of ten or twelve blocks, but that he did not Distance. know because he had not seen Owsley's store that he knew of. It is evident that defendant had no knowledge of the distance, and that his testimony as to the distance was a mere guess. The court did not err in striking out the answer and instructing the jury to disregard it.
III. (a) In the cross-examination of defendant's witness, the prosecuting attorney asked if she was not a kind of a sweetheart of John Owens. The defendant objected, and the Irrelevant prosecuting attorney withdrew the question. He then Questions. asked the witness if she did not run around with the Curtises and that outfit. On objection, the court struck out the words "that outfit." The witness answered "No." As it resulted, the question was not only harmless, but defendant failed to save an exception or to ask additional relief.
(b) Defendant complains of certain remarks made by the court during the trial, relative to conflicting statements and to the statement that Owsley was positive in his Remarks identification; and to the remark, speaking of of Court. defendant while confined in jail, "and no doubt he did have a change of clothing." We need not determine the prejudicial force of the above remarks, if any, for defendant failed to object and except to them.
IV. An assignment of error reads: "The alibi of defendant was proven by five unimpeached witnesses in addition to the defendant." It is possible that we do not understand Defendant's the design of this assignment. However, if defendant Evidence. means to submit that substantive evidence on the part of the State of the commission of a crime and defendant's connection therewith can be destroyed by evidence, however cogent, introduced by defendant tending to show that defendant had no connection with the perpetration of the crime, the position is untenable, for substantial evidence of the commission of a crime and the defendant's connection therewith raises an issue of fact for the jury, thus precluding us from interfering with its finding. We are unable to conceive of any further or different interpretation of the assignment of error than we have given it.
V. An assignment charges the trial court with error in refusing to give to the jury Instructions Three, Four and Five asked by defendant. Instruction Three involved the Instructions: presumption of innocence and the hypothesis that Refusal. clear and convincing proof must be submitted before the jury were authorized to convict defendant. Instruction Four placed the burden of proof on the State to show defendant's guilt beyond a reasonable doubt. Instruction Five involved an alibi. While these instructions properly declared the law as applied to the facts, it was not error to refuse them, because other instructions covered the field.
VI. Defendant requests, in his motion, a new trial on the ground that since the trial newly-discovered evidence came to his knowledge, and that his failure to discover it was not due to the want of due diligence on his part. The motion Newly-Discovered for a new trial was supported by the affidavits Evidence. of witnesses, three of which affidavits were either cumulative of the testimony introduced on the trial, or tended to impeach a State's witness. The other two affidavits related to conversations of certain persons with other men, whom it was stated were later sentenced and confined in the penitentiary, to the effect that they robbed Owsley. Neither by his motion for a new trial, nor by an extraneous affidavit, did defendant make oath that he used diligence and that since the trial the newly-discovered evidence came to his knowledge. He may have known of this evidence prior to the trial, and his sworn statement was necessary to refute the inference that it was. Moreover, the affidavits of those who deponed that they heard the men later confined in the penitentiary say that they committed the robbery was nothing more than hearsay, and their statements could not have been admitted in evidence. Only the testimony of the men confined in the penitentiary would have availed defendant on a retrial, and no affidavit from any of them was filed. The request for a new trial, on the ground of newly-discovered evidence, fails to meet the necessary requirements in that regard. [State v. Miller, 144 Mo. 26, 45 S.W. 1104; State v. Whitsett, 232 Mo. 511, 134 S.W. 555.]
VII. Defendant assigns other alleged errors in his motion for a new trial, but fails to urge them here. However, we have examined such assignments of error, and find them untenable.
We have also examined the remaining portions of the record proper, and it is free from error.
It follows that the judgment must be affirmed. It is so ordered. Henwood and Cooley, CC., concur.
The foregoing opinion by DAVIS, C., is adopted as the opinion of the court. All of the judges concur.