Opinion
March 12, 1941.
1. ROBBERY: Alibi. On the trial of defendant for robbery in the first degree by means of a dangerous weapon where the defense was alibi, supported by evidence, the plaintiff's identification of defendant by the victim was for the jury who believed him and the Supreme Court on appeal will not interfere.
2. TRIALS: Instruction. On the trial of defendant for robbery in the first degree the giving of an instruction which told the jury that the defendant was a competent witness on his own behalf and that it should consider his testimony in connection with other evidence given at the trial, but that in determining the weight to be given the defendant's testimony the jury might take into consideration the fact that he is the defendant on trial and interested in the result of the prosecution, was reversible error.
3. ALLOCUTION. On appeal from a conviction of defendant for robbery in the first degree the record should show the facts rather than state the conclusion that defendant was accorded allocution.
Appeal from Johnson Circuit Court. — Hon. Leslie A. Bruce, Judge.
REVERSED AND REMANDED.
H.M. Atwell for appellant.
(1) It has been held that, since the law establishes a presumption of innocence, which the jurors are required to entertain and act upon until convinced of the guilt of the defendant by evidence beyond a reasonable doubt, defendant has the right in the examination of jurors, to advise them of that presumption of law, and to ascertain whether they would adopt and act upon it and give him the benefit of it in considering the evidence. 35 C.J. 392. It is held that parties have a right to question jurors not only for the purpose of showing grounds for challenge for cause, but also, within reasonable limits to elicit such facts as will enable them to intelligently exercise their right of peremptory challenge, and that it is error for the court to exclude questions which are pertinent for either purpose. 35 C.J. 387; State v. Miller, 207 S.W. 797; Bright v. Sammons, 214 S.W. 425. All questions should be allowed to test juror's competency. 35 C.J. 390; Sellers v. Friedman Bros. Shoe Co., 130 Mo. App. 712; State v. Munch, 57 Mo. App. 207. (2) Verdict must generally be responsive to issue tendered by indictment and plea of not guilty. Mo. Const., Art. II, sec. 12; State v. Hancock, 7 S.W.2d 278. It is the duty of the jury to determine and fix the punishment. Sec. 3703, R.S. 1929. Giving the jury three forms of verdict is subject to criticism. State v. Randolph, 39 S.W.2d 769. The form of verdict given the jury to be filled in and acquiesced in, gives the jury no alternative to find defendant not guilty of first degree robbery by means of a deadly weapon. (3) It is the duty of the trial court to instruct the jury distinctly and precisely upon the law of the case, and to direct their attention to the legal principles which apply to and govern the facts proved or presumed in the case. State v. Pierce, 243 Mo. 524; State v. Harris, 232 Mo. 317; State v. Wilson, 223 Mo. 156.
Roy McKittrick, Attorney General, and Ernest Hubbell, Assistant Attorney General, for respondent.
(1) The record proper is free from error. State v. Kelly, 107 S.W.2d 20; State v. Craft, 23 S.W.2d 183; State v. Weiss, 142 S.W.2d 3; State v. Frazier, 98 S.W.2d 715, 339 Mo. 966; State v. Hefflin, 89 S.W.2d 947, 338 Mo. 236, 103 A.L.R. 1301; 13 C.J., p. 1318, sec. 3107; State v. McClain, 156 Mo. 99, 56 S.W. 731; 16 C.J., p. 1296, sec. 3063, p. 1314, sec. 3096; State v. Gartrell, 171 Mo. 504, 71 S.W. 1031; State v. Turpin, 61 S.W.2d 949, 332 Mo. 1012; State v. Gartrell, 171 Mo. 504. (2) The court did not err in sustaining the State's objection to questions asked by counsel for defendant on voir dire examination of jurors. State v. Hoffman, 125 S.W.2d 57, 344 Mo. 94. (3) The evidence was sufficient. State v. Kelly, 107 S.W.2d 20; State v. Carroll, 62 S.W.2d 867, 333 Mo. 558; State v. Keller, 104 S.W.2d 247; State v. Mason, 98 S.W.2d 577, 339 Mo. 874; State v. Harmon, 296 S.W. 396; State v. Kaner, 93 S.W.2d 673, 338 Mo. 972; State v. Riddle, 23 S.W.2d 179, 324 Mo. 96. (a) The court did not admit irrelevant, incompetent testimony, that is, the statement by the witness Anderson as to what Nichols said regarding repaying the money. State v. Hohensee, 62 S.W.2d 439, 333 Mo. 161; Sec. 3735, R.S. 1929; State v. Kenyon, 126 S.W.2d 250, 343 Mo. 1168; State v. Buckner, 80 S.W.2d 170; 17 C.J., p. 324, sec. 3664; State v. Park, 16 S.W.2d 32, 322 Mo. 69; 4 C.J., p. 982, sec. 2961; 17 C.J., p. 321, sec. 3664. (4) The verdict is sufficient in form and substance, and the court did not err in giving to the jury forms of verdict. State v. Batey, 62 S.W.2d 452; State v. Layton, 58 S.W.2d 459, 332 Mo. 216; State v. Davis, 116 S.W.2d 113, 342 Mo. 594; State v. Davis, 92 S.W. 484, 4 L.R.A. (N.S.) 1023, 194 Mo. 495. (5) The court did not err in giving Instruction 7, because: (a) Assignment 10 in the motion for new trial presents nothing for review. State v. Kelly, 107 S.W.2d 20; State v. Spivey, 191 Mo. 107, 90 S.W. 87; Reis v. Taylor, 103 S.W.2d 899; 45 Words Phrases (Perm. Ed.), p. 19; (b) Defendant made no legal objection and exception to the giving of said Instruction 7, and offered no instruction. State v. Frazier, 98 S.W.2d 714, 339 Mo. 966; State v. Hedgpeth, 278 S.W. 742, 311 Mo. 452; State v. McGee, 83 S.W.2d 110, 336 Mo. 1082; State v. Hart, 56 S.W.2d 594, 331 Mo. 650; State v. Bevins, 43 S.W.2d 434, 328 Mo. 1046; (c) Instruction 7 was not prejudicial in this case. State v. Bunyard, 253 Mo. 356, 161 S.W. 756.
Appellant was charged by indictment returned in the Circuit Court of Johnson County at the October, 1939, Term thereof with the offense of robbery in the first degree by means of a dangerous and deadly weapon, which was alleged to have been committed on September 11, 1935. Upon a trial he was convicted and sentenced to a term of ten years in the penitentiary in accordance with the verdict of the jury. After an unavailing motion for a new trial, he appeals.
I. The point is made that the evidence is insufficient to support the verdict. Wm. Driver, the victim of the robbery, was 49 years of age and had conducted a pool hall in Holden for 24 years. He was afflicted with arthritis and ankylosis, in consequence of which he was badly "bent over" and had to walk with a cane. He closed up his pool hall at about 11:00 P.M., on September 11, 1935, and started to walk to his residence some three or four blocks distant. He was accompanied a part of the way by the night watchman. It was a bright moonlight night. After leaving the watchman, and as he proceeded alone near his home, he encountered two men on the sidewalk. He had stopped so they might pass when one of the men turned and said, "Don't hollow or move, I will shoot." Whereupon, as he testified, "This man held a gun at my back" and the one in front of him, whom he positively identified as the defendant, took from his, Driver's, pocket "between $290.00 and $300.00." There was a scuffle, and Driver was struck by something hard and he fell. The robbers escaped. Driver called for help, and assistance was forthcoming from the neighbor in front of whose house the robbery occurred. It was reported immediately to the night watchman. The prosecuting witness identified the man who held the gun at his back as one Nichols, also charged with the offense, who lived in the country nearby. Defendant lived at Eldon, but admitted that he was in Holden on the afternoon of the day in question. The defense was an alibi.
The alleged insufficiency of the evidence seems to be bottomed in large part on the proposition that Driver's identification was overcome by the testimony of defendant's alibi witnesses. It is true some of defendant's witnesses did testify that he was in the town of Windsor at the time of the commission of the alleged offense, but this merely made a question for the jury. The jury saw fit to believe the prosecuting witness, with which we are not authorized to interfere.
II. By instruction No. 7 the court told the jury that the defendant was a competent witness in his own behalf, and that it should consider his testimony in connection with the other evidence given on the trial, but that in determining what weight to be given to the defendant's testimony, the jury might take into consideration the fact that he is the defendant on trial and interested in the result of the prosecution.
For a long time it has been held that the giving of such an instruction constitutes reversible error. [State v. Finkelstein, 269 Mo. 612, 191 S.W. 1002; State v. Sparks (Mo.), 195 S.W. 1031; State v. Craft (Mo.), 246 S.W. 930; State v. Stallings, 334 Mo. 1, 64 S.W.2d 643.] If the point has been preserved for review, it is tacitly conceded that the judgment in this case must be reversed and the cause remanded. The defendant excepted to the giving of this instruction, and, in the motion for new trial, assigned the same as error for the reason, among others, that it "singles out the testimony of defendant as to his credibility." (Italics ours.) This assignment, the State asserts, preserves nothing for review in that it "attacks singling out testimony only as to credibility;" whereas the instruction says nothing about credibility, but limits its application to the weight of defendant's testimony. We agree with respondent's contention that credibility means capacity for being believed or credited at all, and that weight of evidence means its weight in probative value. Nevertheless, the credibility of testimony, i.e., its capacity for being believed, must be settled before weighing it, since there is no occasion for weighing it if it has not this quality. [Weliska's Case, 131 A. 860, 125 Me. 147, 10 Words and Phrases (Perm. Ed.), 337.] Moreover, the very statute rendering defendants in criminal cases competent as witnesses provides that when a defendant does offer himself as a witness the fact he is the defendant "may be shown for the purpose of affecting the credibility of such witness." (Italics ours.) [Section 3692, R.S. 1929, Mo. Stat. Ann., sec. 3692, p. 3242.] We think the assignment sufficient, and, under the authorities, supra, the giving of the instruction must be held reversible error.
Other errors have been assigned, but they relate to matters not likely to recur upon another trial, and for that reason will not be discussed. The form of allocution is defective and irregular in the respects pointed out in State v. Long, 341 Mo. 706, 108 S.W.2d 388. The plain requirement of the statute, Section 3713, Revised Statutes 1929 (Mo. Stat. Ann., sec. 3713, p. 3263) is that when the defendant appears for judgment "he must be informed by the court of the verdict of the jury." The record should show the facts rather than state the conclusion that defendant was "accorded allocution." The transcript of the record in this case has been twice corrected: Once so as to include a copy of the indictment, and the record entry that it was duly returned, and in another instance to show the swearing of the jury. Even in its amended form it fails to show arraignment and plea of not guilty.
For the error noted in giving instruction No. 7, the judgment is reversed and the cause remanded. All concur.