State v. Batey

• Decision Date: 24 June 1933
• Docket Number: No. 32334.,32334.
• Citation: 62 S.W.2d 450
• Parties: STATE v. BATEY.
• Court: Missouri Supreme Court

62 S.W.2d 450

STATE v. BATEY.

No. 32334.

Supreme Court of Missouri, Division No. 2.

June 24, 1933.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

Al Batey was convicted of first-degree robbery by means of a deadly weapon, and he appeals.

Affirmed.

T. P. Hukriede, of Union, for appellant.

Roy McKittrick, Atty. Gen., and Carl C. Abington, Asst. Atty. Gen., for the State.

COOLEY, Commissioner.

Defendant Batey and three others were charged by information filed in the circuit court of Gasconade county with robbery in the first degree by means of a deadly weapon, as defined by section 4061, R. S. 1929, Mo. Stat. Ann., § 4061, for having robbed the State Bank of Bay at the village of Bay in said county. Upon his application a change of venue was granted this defendant to the circuit court of Franklin county, where he was tried and convicted; his punishment being assessed by the jury at ninety-nine years' imprisonment in the penitentiary. After unavailing motion for new trial he was duly sentenced in accordance with the verdict and has appealed.

The state's evidence tended to show the following: About 10:30 a. m., on September 16, 1931, four men in a Ford sedan drove into the village of Bay, stopping near the bank. Three of them entered the bank, one remaining in the car behind the steering wheel, the engine of the car running. This defendant entered the bank first. At the time no one was in the bank but the cashier, Walter C. Marsh, who was in charge of the bank and its property. Defendant was not masked but wore smoked or colored glasses. He asked Marsh if he knew one Schneider, and while Marsh's attention was directed to defendant the other two men entered, pointed pistols at Marsh through the cashier's window, and compelled him first to throw up his hands and then to lie down on the floor. The three men then went behind the railing, and while this defendant held Marsh on the floor, ordering him on pain of death to keep his eyes closed and striking him once on the head with what Marsh thought was a pistol, the other two rifled the safe and cash drawer, securing between $1,000 and $1,100 in money and some bonds. Marsh could not see but could hear them while they did so. The three then left the bank, re-entered the car, and the four men drove away. That afternoon the car was found abandoned in the woods four or five miles from Bay. Defendant was apprehended in Kansas City a month or so later. At the trial he was positively identified by Marsh as the man who had first entered the bank and engaged him in conversation and who had held him on the floor while his two confederates looted the bank. Defendant, testifying for himself, denied participation in or presence at the robbery and introduced evidence of alibi. The state's evidence establishes the crime charged and its sufficiency is not challenged.

The record presents but little for review. Appellant in his brief criticizes the state's main instruction, but there is no complaint of or reference to the state's instructions in the motion for new trial, and they are therefore not reviewable on appeal, as we have frequently held. The only objections relative to the instructions contained in the motion for new trial are that the court erred "in refusing defendant's instruction number 6 relating to identification," and "that the court failed to instruct on all the law in the case." The latter assignment is clearly insufficient to present anything for review. The motion does not attempt to point out in any way and we do not perceive wherein the court failed to instruct on all the law necessary for the proper information of the jury. State v. Maness (Mo. Sup.) 19 S.W.(2d) 628; State v. Boone (Mo. Sup.) 289 S. W. 575. We think the first assignment is likewise insufficient. See State v. Standifer, 316 Mo. 49, 289 S. W. 856. Moreover, there was no error in the refusal of defendant's instruction No. 6 had the point been sufficiently preserved. By that instruction the defendant sought to have the court single out and require the jury to find the one fact that defendant had been identified beyond a reasonable doubt as one of the men who robbed the bank. By a general instruction the jury was required to find defendant's guilt beyond a reasonable doubt; by another, submitted by defendant, it was told in substance that if under all the evidence the jury had a reasonable doubt as to defendant's presence at the time and place of the alleged offense he should be acquitted; and by another, given at defendant's request, that he should be acquitted unless the jury found beyond a reasonable doubt that this defendant was present and personally or acting with others "with common intent" put Marsh in fear of immediate personal injury by pointing a pistol at him, etc. The jury was sufficiently instructed. The court is not required to instruct separately as to each fact in the case necessary to be found in order to establish guilt and that it must be found beyond a reasonable doubt.

Complaint is made of the admission of certain testimony of state's witness Albert Schatzer, in rebuttal, on the ground, alleged in the motion for new trial, that it referred to another offense. Defendant had testified in connection with his claim of alibi to passing through Jefferson City en route to St. Louis, in company with...