State v. Ball

• Decision Date: 02 March 1929
• Docket Number: 29083
• Citation: 14 S.W.2d 638,321 Mo. 1171
• Parties: The State v. Francis T. Ball, Appellant
• Court: Missouri Supreme Court

14 S.W.2d 638

321 Mo. 1171

The State v. Francis T. Ball, Appellant

No. 29083

Supreme Court of Missouri

March 2, 1929

Motion for Rehearing Overruled March 2, 1929.

Appeal from Reynolds Circuit Court; Hon. E. M. Dearing Judge.

Affirmed.

Greensfelder Rosenberger & Grand, Carter M. Buford and O. M Munger for appellant.

(1) The second count of the information, which charges that the robbery was committed "in the manner and form aforesaid" (referring to the first count) but which does not allege what the manner or form or what the means were, is fatally defective. State v. Wade, 147 Mo. 73. (2) The State failed in its proof, and defendant's peremptory instruction offered at the close of the whole case should have been given. Secs. 3490, 3491, 4030, 3687, 3688, 3728, R. S. 1919; State v. Davis, 29 Mo. 391; State v. Loeb, 190 S.W. 304. (3) The Circuit Court of Wayne County had no jurisdiction in the case of State v. F. L. Smith, and had no authority or jurisdiction to entertain a motion on the part of the State to enter a nolle prosequi in Smith's favor. A change of venue is not authorized unless all the provisions of the statute in relation to the application have been complied with, and in Smith's case none of the provisions of the statute in relation to granting a change of venue had been complied with. Secs. 3969, 3972, 3973, as amended Laws 1921, p. 206, and 3974, 3990, 4035, R. S. 1919; State v. Witherspoon, 231 Mo. 706; Hutsing v. Maus, 36 Mo. 101; State v. Wetherford, 25 Mo. 439. (4) That the bank was entered by robbers and that the robbers who entered it each had a pistol, was not a disputed point in the case. There was no evidence that the robbers, in accomplishing the robbery, had or used a sawed-off shotgun. The evidence failed to show that the defendant was ever in possession of the three pistols, or either of them, or of the sawed-off shotgun introduced in evidence. It was not necessary on the part of the State, to make its case, to introduce the three pistols and the sawed-off shotgun. The introduction of these weapons could serve no useful purpose for the State and the only effect of the introduction and exhibition of the three pistols and the sawed-off shotgun was to influence the jury, and inflame it against defendant. State v. Ilgenfritz, 263 Mo. 615; State v. Porter, 276 Mo. 332; State v. Creed, 299 Mo. 307; State v. Rennison, 306 Mo. 473; State v. Pearson, 270 S.W. 351; McKay v. State, 39 L. R. A. (N. S.) 719. (5) Permitting the bank cashier to testify that since the robbery, in the absence of the defendant, he had seen the robber who had held him up and had pointed a pistol at him, and that this robber was one Harry Huffendieck, and permitting this witness to testify as to the circumstances under which he identified the alleged Harry Huffendieck, was entirely uncalled for and prejudiced defendant's case before the jury. It certainly was an unheard of procedure to permit the prosecuting attorney to testify that the John Doe mentioned in the information was this man named Harry Huffendieck. (6) The acts and conduct of a co-conspirator before the conspiracy was formed or after the object of the conspiracy had been accomplished, and the conspiracy had come to an end, are inadmissible. People v. Parker, 67 Mich. 222; State v. Darling, 199 Mo. 168; State v. Buckley, 298 S.W. 780. (7) What may have occurred at the club house, in the absence of the defendant, on Sunday morning, September 26, 1926, and after the defendant had been arrested on the evening of Saturday, September 25, 1926, and had been taken to the jail at Hillsboro, was not admissible in evidence, and the testimony of witness Edward C. Staat, in regard to finding certain money, bonds and the weapons introduced in evidence on the property adjacent to the club house in question, on the Sunday morning following the robbery, and in the absence of the defendant and while the defendant was in jail, was highly prejudicial. The money, bonds and weapons, for ought the evidence shows, may have been found at a point far distant from the club house and may have been "planted" in the vicinity of the club house by one or more of the detectives who were busily concerned in trying to work up a case against this defendant and reap a reward. (8) The State proceeded on the theory that the defendant had entered into a conspiracy in St. Louis County, on Friday, September 24, 1926, to rob the bank. The undisputed testimony showed that Ball, on the morning of and at the time the bank was robbed, was at the club house far distant from the scene of the robbery. He was not present thereat and did not then and there aid, abet or assist, and, therefore, defendant's Instruction 3 as proffered should have been given. Sec. 3687, R. S. 1919; State v. Davis, 29 Mo. 391. (9) Mrs. Martin was an important witness for the defendant. The State did not attempt in any way to impeach her. If the prosecuting attorney could, in a legitimate way, tear her testimony to pieces or discredit her testimony we concede he had the right so to do, but he had no right to make an unwarranted and unprovoked attack on this witness without any testimony showing a valid reason so to do; and when the Prosecuting Attorney, in his argument, called the jury's attention to the fact that this woman when she testified had stains on her fingers (which were afterwards, on the hearing of defendant's motion for a new trial, proved to be iodine stains), and that these stains on the witness's fingers showed the kind of a woman she was, he attempted to inject and did inject poison in the case, and instead of reprimanding him the trial court sanctioned such statement and gave it his approval, and thereby the court committed reversible error. State v. Wigger, 196 Mo. 90; State v. Volz, 190 S.W. 311; State v. Edmondson, 218 S.W. 867; State v. Campbell, 278 S.W. 1052.

Stratton Shartel, Attorney-General, and Claud E. Curtis, Special Assistant Attorney-General, for respondent.

(1) The amended information is in proper legal form. (a) It sufficiently charges the crime of robbery in the first degree. State v. Roberts, 278 S.W. 971; State v Wood, 285 S.W. 737. (b) It sufficiently charges the defendant as being an accessory before the fact. State v. Stacy, 103 Mo. 11; State v. Roderman, 297 Mo. 143; State v. Granger, 203 Mo. 586; State v. Gow, 235 Mo. 307; Sec. 3687, R. S. 1919. (2) The evidence is sufficient upon which to base the verdict of the jury. State v. Wigger, 196 Mo. 90; State v. Shelton, 223 Mo. 118; State v. Glon, 253 S.W. 364; State v. Caulder, 262 S.W. 1023; State v. Wood, 285 S.W. 737; State v. Howerton, 228 S.W. 745; State v. Braden, 295 S.W. 784. (a) The evidence of an accomplice, even though uncorroborated, is sufficient. State v. Sharp, 300 S.W. 501; State v. Stevens, 8 S.W.2d 3. (b) There was sufficient evidence to establish the robbery of the bank by Schooley et al. State v. Wallace, 278 S.W. 663. (c) The weight of the evidence is a matter for the jury and not for this court. State v. Sharp, supra. (3) The court of Wayne County had jurisdiction to enter a nolle prosequi against F. L. Smith. (a) The erroneous order of a court relative to a change of venue is not a nullity; the court having jurisdiction over the offense and the person of the defendant may make such an order, and exception, to be good, must be made in the court which ordered the change of venue. State ex rel. v. McKee, 150 Mo. 233; State ex rel. Wolfner v. Harris, 278 S.W. 668; State v. Lynn, 169 Mo. 664. (b) A change of venue may properly be granted by a circuit court upon agreement of the parties. State v. Taylor, 132 Mo. 282; State v. Nave, 185 Mo. 125. (c) A nolle prosequi having been entered against Smith, he was a competent witness. Sec. 4035, R. S. 1919. (4) The introduction of three pistols and a sawed-off shotgun in evidence was not error; the jury were entitled to know this circumstance. State v. Reeves, 195 S.W. 1031; State v. Hopkins, 278 Mo. 388; State v. Parr, 296 Mo. 406; State v. Conley, 238 S.W. 804; State v. Gartrell, 171 Mo. 489; State v. Stair, 87 Mo. 268; 16 C. J. 618, sec. 1225. A revolver is not of the character to excite prejudice or passion. State v. Hart, 309 Mo. 77. (5) No error was committed by the admission of evidence showing acts of the bank robbers immediately after the robbery while they were attempting to escape, and at the time they were arrested near the defendant's clubhouse. All the facts and circumstances relative to the arrest of the defendants and the finding of the money, which had been stolen near defendant's clubhouse, were properly admitted in evidence. (a) All acts and statements of co-conspirators during the existence of a conspiracy are admissible. State v. Bersch, 276 Mo. 397; State v. Darling, 199 Mo. 201; State v. Shields, 296 Mo. 389; State v. Bobbitt, 228 Mo. 252; State v. Midkiff, 286 S.W. 20. (b) Evidence of acts and declarations by a conspirator, during the conspiracy, is admissible, although such acts and declarations occur after the commission of the specific crime. State v. Strait, 279 S.W. 114; State v. Costello, 252 S.W. 728; State v. Harrison, 285 S.W. 86; State v. Pratt, 121 Mo. 572; State v. Gow, 235 Mo. 307. (6) It was proper for the State's witness to name the parties who committed the robbery in question, and was proper for him to say that he had, since the robbery, seen Harry Huffendieck, who was one of the robbers. State v. Holmes, 289 S.W. 907; State v. Ruck, 194 Mo. 416. (7) Instruction 3, offered by the defendant, was properly rejected. State v. Roderman, 297 Mo. 143; State v. Hayes, 262 S.W. 1034. Instruction 2, given by the court, properly declared the law in the case. State v. Wood, 285 S.W. 737. This instruction is not erroneous because it assumes facts which were in issue. ...