State v. Biven
| Decision Date | 10 June 1941 |
| Docket Number | 37529 |
| Citation | 151 S.W.2d 1114 |
| Parties | STATE v. BIVEN |
| Court | Missouri Supreme Court |
Roy McKittrick, Atty. Gen., and W. O. Jackson, Asst. Atty. Gen for respondent.
COOLEY, Commissioner.
Defendant was charged, by information, filed in the Circuit Court of Christian County, with the crime of robbery in the first degree, committed by means of a dangerous and deadly weapon. The cause was transferred on change of venue to the Circuit Court of Douglas County where it was tried, resulting in defendant's conviction and sentence to ten years imprisonment in the penitentiary and he has appealed. He has filed no brief in this court. His motion for new trial challenges the sufficiency of the information and, though none too clearly stated, seems also intended to challenge the sufficiency of the evidence to show the commission of a crime. There is also an allegation in the motion that the verdict was 'improper, erroneous and not in proper form.' There are some other assignments of error in said motion that are too indefinite to present anything for review as will be briefly pointed out in our opinion. The information and verdict being parts of the record proper it is our duty to examine them regardless of the sufficiency or insufficiency of the motion for new trial.
Omitting caption, signature and verification, the information reads: ''Joseph C. Crain, Prosecuting Attorney, within and for the County of Christian, in the State of Missouri, informs the court that on or about the 23 day of Feb. A.D., 1938, at the said County of Christian, state aforesaid, Harold Biven did then and there in and upon one Jesse Wood willfully, unlawfully and feloniously make an assault and did then and there unlawfully and feloniously rob, take, steal and carry away about -- dollars, good and lawful money of the United States of the value of -- dollars and check for the payment of money in the amount and of the value of about $ 200.00 dollars, same being the money, goods, chattels, and personal property of the Apex Beverage Company, a corporation duly organized and existing under and by virtue of the laws of the State of Missouri, by then and there putting the said Jesse Wood, who was then and there a regularly employed servant and agent of the said Apex Beverage Co., a corporation as aforesaid, and who was then and there in charge of the money and property aforesaid, in fear of some immediate injury to his life, limb and person by then and there pointing at and toward the said Jesse Wood, an automatic pistol, which he, the said Harold Biven, did then and there unlawfully, feloniously and willfully rob, steal, take and carry away the said money and personal property aforesaid of the said Apex Beverage Co., a corporation as aforesaid, from the said Jesse Wood and against his will and from the possession and control of the said Apex Beverage Company with the intent then and there to permanently deprive the said Apex Beverage Co. of their property and of the possession of said property and to convert the same to his own use, against the peace and dignity of the state.''
The verdict as set out in the transcript of the record proper, its proper repository, reads (omitting signature): 'We, the jury, find the defendant, Harold Biven, guilty of robbery with firearms as charged in the information and assess his punishment at ten years in the state penitentiary.' The verdict is again set out in the bill of exceptions, and as it there appears it is the same as above quoted except that the word 'penitentiary' is spelled 'penitchary' and the word 'the' is omitted before the words 'state penitchary.'
The evidence on behalf of the state tended to show the following: The Apex Beverage Company was a Missouri corporation engaged in selling beer. Jesse Wood was its regularly employed beer salesman, his duties being to sell and deliver beer by the case or by the keg to persons conducting cafes, restaurants and such places who sold beer at retail, over a considerable area south of Springfield, Missouri, and to collect for beer so sold and delivered. He went from place to place in his territory in a truck, delivering to his customers and collecting from them as sales were made. He had a helper, Carl Buffenbarger, who usually accompanied him on his trips and did so on the occasion here involved. Wood and Buffenbarger both testified that in the evening of February 23, 1938, between eight and nine o'clock, they stopped at a cafe and filling station, the last place on Wood's route for that day, sold and delivered two cases of beer and Wood collected therefor; that as Wood came out of the cafe after delivery of the beer and approached his truck, standing near, Buffenbarger being engaged at the moment in loading onto the truck some empty cases they picked up there, a man suddenly appeared from behind a truck or car parked near by, presented and pointed at Wood an automatic pistol, told him 'This is a stickup' and demanded his money. The robber also compelled Buffenbarger to come over near Wood, and while he had them both covered compelled them to hand over the money they had, securing from Buffenbarger only a small amount of 'change' but from Wood obtaining the latter's pocketbook containing his collections for the day, which belonged to the Apex Beverage Company and was in Wood's custody, as well as a few dollars of Wood's own money which he had in another pocket.
Wood and Buffenbarger testified that the robber compelled them to get in the truck and drive a short distance up the road, where he left them and ran into a cornfield, where they lost sight of him. Tracks were found in the field the next morning which, testimony offered by the state tended to show, corresponded in size and shape with the shoes worn by defendant when arrested about a week later, and which shoes he said he had worn for some time and were the only shoes he had.
Wood and Buffenbarger both identified defendant at the trial as the man who had robbed them. They said there had been sufficient light from the cafe and filling station lights for them to see. They were positive in their identification. They also said they had been called to the police station when defendant was detained there following his arrest and had been given opportunity to hear him in conversation with two or three other men when they could not see him nor he them and had recognized and identified his voice, and Buffenbarger said that before leaving the police station he saw and recognized defendant.
Wood testified that the robber took from him approximately $ 90 in money and about $ 110 in checks, which money and checks he had collected that day for the Apex Beverage Company.
The defense was an alibi. Defendant testified he had not committed the robbery and testified as to his whereabouts that evening, from about 7:00 P.M. till 11:30 P.M., or midnight, in which alibi testimony he was corroborated by three or four witnesses called by him.
It is needless further to detail the evidence. Wood and Buffenbarger were cross-examined at length, but their testimony as to the robbery and the identification of defendant was not substantially weakened by the cross-examination. If defendant's alibi evidence was true he could not have been at the scene of the robbery when the state's evidence showed it occurred. But the credibility of the witnesses and the weight of their testimony were questions for the jury. There can be no doubt that the state introduced substantial evidence of defendant's guilt.
In his motion for new trial defendant alleged in substance that the...
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