State v. Kowertz

Decision Date19 February 1930
Docket Number30142
Citation25 S.W.2d 113,324 Mo. 748
PartiesThe State v. George Kowertz, Appellant
CourtMissouri Supreme Court

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

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 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 west and north of Ballard, Dr. Fletcher had stopped his automobile by the roadside and was seated therein. He had his shotgun with him and was looking over the surface of a lake or pond near the roadside to see if any ducks were on the water. Two men in a Hudson automobile, driving from the direction of Ballard and answering the general description of the men who robbed the Ballard bank, drove up behind him. They immediately got out and approached Dr. Fletcher's automobile and, by a display of deadly weapons, compelled him to drive them in his automobile toward Kansas City. After proceeding a mile or so, Dr. Fletcher saw that an automobile containing several men would meet his automobile approximately at the ford of a muddy creek or branch and suddenly ditched or mired his automobile so as to make it impossible for either automobile to proceed. After inflicting certain bodily injuries on Dr. Fletcher by way of retaliation or punishment, the two men got out of his automobile, taking the handbag, their own weapons and Dr. Fletcher's shotgun. After threatening the occupants of the second automobile, these men commandeered said automobile and drove the same toward Kansas City and escaped.

One week later appellant and one Seeton were arrested while they were in bed together in a rooming house in Kansas City. Appellant was identified at the trial by Kedigh and Winegarden as one of the men who entered the bank and robbed it. Dr. Fletcher identified him as one of the men who seized him and his automobile and attempted to compel him to drive them to Kansas City. Dr. Fletcher also identified a shotgun produced at the trial as the shotgun taken from him by these men. The barrel had been sawed off since it was taken from him. It was not shown that appellant was in possession of the gun at the time of his arrest or at any time other than when it was taken from Dr. Fletcher's automobile.

Testifying in his own behalf, appellant said that he was a graduate physician. He denied participation in the robbery of the bank at Ballard, and said he was in Kansas City on the day it occurred. It appeared from the testimony of appellant's wife that he had served a term in the Federal prison at Leavenworth, Kansas. The nature of his offense was not shown.

By a Mrs. Murray, the keeper of the rooming house in Kansas City, and her negro maid and other witnesses, it was shown that appellant was at said rooming house or elsewhere in Kansas City during the entire day of November 22nd. If the jury had believed appellant's alibi evidence, it would necessarily have found him not guilty. Appellant also offered testimony which tended to show that Cashier Kedigh was unable to identify appellant when he first saw him after his arrest in Kansas City.

It is manifest from the foregoing brief sketch of the facts developed in evidence that there was sufficient evidence to authorize the jury to find that appellant was one of the men who held up Kedigh and Winegarden and robbed the bank at Ballard, Missouri, November 22, 1928.

It is contended that the venue of the crime was not properly shown. Kedigh said that the robbery was committed in Ballard, in Bates County. Other testimony tended to show that the crime was committed in Missouri. It was shown that the bank robbed was in Ballard, Missouri. There was, therefore, substantial evidence tending to show that the crime was committed in Bates County, Missouri.

It is also contended that it was not shown that the revolvers used by the robbers were loaded, as charged in the indictment, and hence that no case was made authorizing punishment under Section 3310, Laws of 1927, page 174, for robbery by means of a dangerous and deadly weapon. The statute authorizes greater punishment where the first-degree robbery is committed "by means of a dangerous and deadly weapon." The use in the indictment of the words "loaded with gunpowder and leaden balls" was clearly surplusage and, of course, it was unnecessary to prove such loading, if the mere proof that the robbery was committed by means of a revolver or automatic pistol be regarded as sufficient proof that the robbery was committed "by means of a dangerous and deadly weapon."

The meaning of those words in the 1927 Act has not been passed upon by this court. However, we...

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    • United States
    • Missouri Supreme Court
    • September 10, 1940
    ...State v. Raines, 333 Mo. 538, 541, 62 S.W. (2d) 727, 728; State v. Nichols, 327 Mo. 1237, 1244, 39 S.W. (2d) 777, 780; State v. Kowertz, 324 Mo. 748, 755, 25 S.W. (2d) 113, Appellant's counsel further say in their brief they are under the impression that there is a recent decision of this c......
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