State v. Sydnor

BEOWN, P. J. 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 [378] 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 Tie 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; ap [379] parently 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, 1913, when they went to the Chinese restaurant, where they were arrested. The father of Sydnor testified that his son (one of the defendants) had been working for him regularly as a paper hanger, and that on the day prior to the alleged robbery he paid his son $12.50 in cash and gave him an order on which the son received eight dollars additional. Defendant Sydnor was not sworn, but defendant Foster testified, denying all connection with the robbery. He stated that he never saw the prosecuting witness until defendants entered the restaurant, where they were arrested. The evidence of the prosecuting witness and the policeman was to the effect that there were very few people on the streets near the corner of Fairfax and Sarah at the hour of 1:30 a. m., on January 1, 1913, while the evidence of defendants’ witnesses tended to prove that there were numerous people on said streets at that hour. Such other points in the evidence, as are necessary to a proper understanding of the case will be found in our opinion. [380] The defendants have filed no brief in this court, but their motion for' new trial below assigns the following alleged errors: (1) Failure of the trial court to instruct the jury on all the law of the case; (2) exclusion of legal evidence; (3) admission of improper evidence; and, (4) that the verdict is against the evidence. instructions. I. Defendants’ first assignment must be disregarded, because their motion for new trial does not designate any point upon which the court failed instruct the jury. [State v. Conway, 241 Mo. l. c. 283; State v. Dockery, 243 Mo. l. c. 599; State v. Horton, 247 Mo. l. c. 663.] Exclusion ofEvidence. II. The only evidence offered by defendants-which was excluded by the court was a part of the' cross-examination, of the prosecuting witness. . Said witness upon being asked by defendants ’ counsel if he went into the alley where he was robbed, with some negro girls, he replied that he did not. He was then asked if he would not deny that he went into an alley with negro girls even if it were true. Upon objection by the State, he was not required to answer the last question. We do not think the witness should have been 'required to pass judgment on his own veracity, or lack of it, under a state of facts which, so far as the evidence indicates, had not yet arisen. The court did not err in refusing to require the prosecuting witness to answer the question. No effort was made to impeach the witness by evidence of his general bad reputation for truth or morality. III. A careful reading of the entire record does not disclose the admission of any improper evidence, consequently there is nothing to support defendants’ third assignment. [381] Sufficiency of Evidence. [380] IV. The fourth assignment challenges the sufficiency of the evidence. The prosecuting witness says [381] that when seized by the defendants he was standing, or walking slowly, under a very bright street lamp, so that he must have obtained a good view of their faces, which were not masked. He also heard their voices. This gave him a very good opportunity to identify them. We think the evidence of the prosecuting witness made out a prima-facie case foi; the State, and that other evidence in the case tends to corroborate him. The evidence of defendants’ own witnesses indicates that the defendants were together on the streets not more than a block from the place where the prosecuting witness claims he was robbed within ten minutes of the time of the robbery. The alibi which the defendants attempted to establish is not very convincing. It is seldom that any witness can remember the exact minute when a transaction took place. This is illus-. trated by the testimony in this case. One of defendants’ witnesses swore than the defendants did not leave Lang’s New Year’s party until about 3:30 a. m., while defendant Poster swears that they left Lang’s between two and three a. m. It was the special province of the jury to weigh the evidence, and there is nothing in this case which would warrant us in disturbing their verdict. [State v. Alexander, 184 Mo. 266; State v. Newman, 245 Mo. 495.] The judgment is affirmed. Walker and Faris, JJ., concur.