Opinion
No. 41394.
February 13, 1950.
APPEAL FROM THE CIRCUIT COURT OF HOWARD COUNTY, LAWRENCE HOLMAN, J.
William M. Stringer, Moberly, Don C. Carter, Sturgeon, Luman Spry, Fayette, for appellant.
J. E. Taylor, Attorney General, John S. Phillips, Assistant Attorney General, for respondent.
Defendant appealed from a judgment of conviction of robbery in the first degree. His sentence was fixed at five years' imprisonment in the penitentiary. The offense was alleged to have been committed in Randolph County. On change of venue the case was tried in Howard County, Missouri.
Four points were briefed by the defendant seeking a reversal of his conviction. They are that the evidence was insufficient to sustain the verdict of the jury; that the court erred in excluding certain evidence; that error was committed by permitting the prosecuting attorney to show that a codefendant had been convicted and sentenced to serve a term in the Reformatory for Boys at Boonville; and that the verdict of the jury was the result of prejudice injected into the case by showing the conviction of the codefendant. We shall dispose of the questions in the order named.
The evidence on the part of the State disclosed the following: The prosecuting witness, Louie Morrow, lived at Wilton, Missouri. He went to Moberly on January 9, 1948, arriving there about 9:00 P.M. He visited a number of places such as restaurants, pool halls, and taverns. One of these places was the Pastime Tavern. While in this place, he saw the defendant and a cousin of the defendant, Bobby Ronimous. He was not acquainted with them nor was he acquainted in Moberly. Morrow testified that he, the defendant and Bobby, at the latter's suggestion, left the Pastime Tavern to go to a dance hall; that the three walked together a short distance when they came to what Morrow described as a woods path; that while walking along this path with Bobby in the lead, Morrow in the middle, and the defendant following, Bobby stopped and at the same time the defendant grabbed Morrow and held him; that Bobby took a knife out of his pocket and then with threats of violence took $23.00 out of Morrow's wallet. According to Morrow's testimony, the Ronimous boys threatened to cut off his head and throw him into a pond or lake. The defendant and his cousin then left by way of the woods path after admonishing Morrow that he had better not report the incident. Morrow, in an effort to find his way back to the business district of Moberly, stopped at the home of a man named Arthur. Morrow found his way to the police station and reported the robbery. He gave the police a description of his assailants. The police arrested the defendant and his cousin and brought them to the police station at about 3:00 or 4:00 A.M. Morrow identified them as the boys who had taken his money. At the trial Morrow was positive in his identification of the defendant.
At the trial Arthur and his wife testified that Morrow was the man who had made inquiry as to the way to the business district of Moberly on the night of January 9. Arthur stated that there was a pond or lake at a rock quarry nearby.
The defendant introduced evidence tending to prove an alibi. He emphatically denied that he or his cousin committed the robbery. He admitted having been with his cousin Bobby on the night of January 9, that they had been at the Pastime Tavern and had noticed Morrow there. The defendant testified he did not know Morrow and did not leave the Pastime Tavern with him. Defendant introduced evidence in support of his alibi.
We deem the evidence of the State ample. The credibility of the witnesses and the weight of the evidence was for a jury. 54 C.J. 1074, Sec. 181. The defendant says that Morrow's evidence was uncorroborated. To this we cannot agree. The above statement of the case answers that question. The point must be ruled against the defendant. State v. Moulder, Mo.Sup., 57 S.W.2d 1064, loc. cit. 1065(1).
The prosecuting witness Morrow on cross-examination was asked if he had not been in Moberly several months after the alleged offense was committed and while in a taxicab office made a statement, "Where are those two boys that were in that taxicab with me awhile ago? They robbed me." and "didn't Miss Dooley say to you at that time, `here you are again, trying to get two other boys into trouble.'" An objection to the question was sustained and defendant assigned this ruling as error. The defendant claimed at the trial that he was asking the question for the purpose of impeachment. We do not see how an answer to that question whether affirmative or negative would tend to impeach the witness. The defendant cited no case to support his contention. The incident, if it occurred, had no connection with the case then on trial. There is no merit in defendant's contention.
The last two assignments of error briefed pertain to the matter of the trial and conviction in the Juvenile Court of Bobby Ronimous of the same offense. The defendant claims that the trial court erred in permitting the State to show such conviction. Bobby was a witness for the defendant and was brought to the court at the defendant's request. He was examined by defendant's attorney, then cross-examined by the State. In this cross-examination he was asked where he had come from that day. The court promptly sustained the defendant's objection and the question was not answered. Later he was asked if he testified in the trial at Huntsville and the witness answered that he had. The question was then asked, "Was that before you went to Boonville?" The court sustained an objection, admonished the jury to disregard the question, but refused to discharge the jury as the defendant requested. We hold the court did not abuse its discretion in not granting a new trial. See State v. Mahan, Mo.Sup., 226 S.W.2d 593; 24 C.J.S., Criminal Law, § 1866, p. 759; State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642, loc. cit. 646(10-12).
The record does not disclose that the State by its evidence proved that Bobby was convicted or was serving time in the reformatory. The defendant in his argument says that the jury could have inferred such fact by observing an officer of the reformatory present in court. The defendant and not the prosecution was responsible for his presence. Bobby was a witness for the defendant. He was subject to be cross-examined as to his evidence at a previous trial involving this same offense. That such an examination necessarily revealed that the witness was on trial in that case does not constitute error.
We have examined all assignments of error and find no prejudicial error present.
The judgment is affirmed.
BOHLING and BARRETT, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.