25 S.W.2d 113 (Mo. 1930), 30142, State v. Kowertz

Docket Nº:30142
Citation:25 S.W.2d 113, 324 Mo. 748
Opinion Judge:BLAIR
Party Name:The State v. George Kowertz, Appellant
Attorney:Stratton Shartel, Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.
Judge Panel:Blair, P. J. White, J., concurs; Walker, J., absent.
Case Date:February 19, 1930
Court:Supreme Court of Missouri
 
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Page 113

25 S.W.2d 113 (Mo. 1930)

324 Mo. 748

The State

v.

George Kowertz, Appellant

No. 30142

Supreme Court of Missouri

February 19, 1930

Appeal from Bates Circuit Court; Hon. W. L. Burney, Judge.

Affirmed.

Stratton Shartel, Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.

(1) The indictment is substantially in the language of the statute and is sufficient. It was proper to charge in the indictment that the property was in the custody of the cashier and his assistant and that it belonged to the bank. State v. Craft, 253 S.W. 224; State v. Dickens, 285 S.W. 445; State v. Wilhite, 295 S.W. 82; State v. Reich, 293 Mo. 422. (2) The jury could not have been prejudiced on account of the statement made in the examination of the panel. State v. Poor, 228 S.W. 814. The foregoing assignment No. 2 is a challenge to the array. Such a challenge must be in writing. It was not made in writing and therefore cannot be considered by this court. State v. Church, 199 Mo. 629; State v. Taylor, 134 Mo. 143; State v. Ivy, 192 S.W. 737; State v. Bellknap, 221 S.W. 44; State v. Ray, 225 S.W. 973; State v. Garrett, 226 S.W. 7. (3) There was no error either in the statement of the prosecuting attorney or in the admission of the evidence showing that the witness saw the defendant a short time after the robbery and not far away from the scene of the crime. The evidence shows that the witness saw the defendant about thirty miles from Ballard where the crime was committed; that the robbery was committed about four o'clock in the afternoon; that this witness saw defendant about five o'clock the same afternoon This evidence was admissible, although it disclosed that the defendant assaulted the witness. State v. Williams, 183 S.W. 310. (4) The gun introduced corroborated the testimony of the witness. He testified that the defendant when he saw him took the gun away from witness' car. It is true that the evidence does not show that the gun was found in possession of the defendant after that time. Nevertheless it was competent as a link in the chain of identification. Moreover the defendant did not object to the introduction of the gun in evidence. (5) Seeton was charged with having a part in the robbery. The two men had been rooming together for two or three weeks prior to the robbery. They were together when arrested. Under the facts it was proper to show that Seeton was with the defendant at the time of his arrest. State v. Potts, 239 Mo. 411. (6) The venue was proven. It is in evidence that the robbery occurred at Ballard in Bates County. It is true that when this question was asked, "In what county and state is this bank located" the witness replied, "Bates County" and did not mention the State, but other parts of the record show that Ballard is in Missouri. Moreover if there was no other testimony than that the offense was committed in the town of Ballard, that would be a sufficient proof of the venue. The court will take judicial notice that Ballard is in Bates County and that Bates County is in the State of Missouri. State v. Pennington, 124 Mo. 391; State v. Reed, 290 S.W. 147. (7) It is in evidence that the defendant had a revolver and pointed it at the cashier of the bank. It is not necessary for the State to go further and prove that the revolver was loaded. That would render the statute unenforceable. State v. Riles, 204 S.W. 2. (8) The defendant was guilty of robbery with a dangerous and deadly weapon. Instructions are properly refused when not authorized by the evidence. (9) The court gave full and fair instructions on the subject of reasonable doubt and alibi. These instructions are in a form often approved by this court. It was therefore not error to refuse other instructions on the same subjects. State v. Gilbert, 186 S.W. 1004. (10) An attorney employed to assist the prosecuting attorney may close the argument. The Assistant Attorney-General certainly has an equal right since he is acting under a specific statute. Sec. 693, R. S. 1919; State v. Coleman, 199 Mo. 120. (11) The regulation as to the time consumed in the argument is left to the discretion of the court. Kelley's Criminal Law (4 Ed.) sec. 402; State v. Silvey, 296 S.W. 132.

Blair, P. J. White, J., concurs; Walker, J., absent.

OPINION

BLAIR

Page 114

[324 Mo. 751] In the Circuit Court of Bates County, George Kowertz was convicted of first degree robbery by means of a dangerous and deadly weapon, for which the jury assessed his punishment at imprisonment in the penitentiary for twenty years. Under th [324 Mo. 752] provisions of Laws of 1927, page 173, the trial court thereupon increased his punishment by imposing imprisonment for two years in addition to that assessed by the jury. From the judgment thus rendered, an appeal was granted to this court. Appellant has not furnished us with a brief.

The State's evidence tended to prove the following facts:

The Ballard Banking Company, a banking corporation of Ballard, in Bates County, was entered by appellant and a companion shortly before closing time on November 22, 1928. By means of the fear engendered by their display of revolvers or pistols, these men took from said bank and from Jacob Kedigh and Ray Winegarden, cashier and assistant cashier, respectively, in custody of said bank, about a thousand dollars in money. The robbers then tied the bank officials together and departed in a Hudson automobile, carrying the stolen money in a handbag.

Within about an hour afterwards and near Drexel in the same county and about thirty miles...

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