State v. Boone

• Decision Date: 20 December 1926
• Docket Number: No. 27387.,27387.
• Citation: 289 S.W. 575
• Parties: STATE v. BOONE
• Court: Missouri Supreme Court

289 S.W. 575

STATE v. BOONE

No. 27387.

Supreme Court of Missouri, Division No. 2.

December 20, 1926.

Appeal from Circuit Court, Cass County; Ewing Cokrell, Judge.

Leon Boone was convicted of robbery, and he appeals. Affirmed.

James Daleo, of Kansas City, for appellant.

North T. Gentry, Atty. Gen., and W. F. Frank, Asst. Atty. Gen., for the State.

BLAIR, J.

Appellant was tried in Cass county, after a change of venue from Johnson county, for a robbery committed in the latter county. He has appealed from the judgment and sentence entered upon the verdict finding him guilty and assessing his punishment at a term of 25 years in the penitentiary.

The evidence tended strongly to show the guilt of appellant. It is not necessary to set it out fully. On the evening of May 24, 1921, in the town of Holden, in Johnson county, W. F. Jetmore and wife were entertaining Dr. McDaniel and wife in their home at a game of Mah Jong. At about 10 o'clock p. m., Mr. Jetmore answered the door bell. Upon opening the door a white man, said to have been one McFadden, covered Jetmore with his revolver and backed him into the room here his wife and the McDaniels were, and then drove them all into the back parlor or sitting room and there kept them covered. Immediately, two negroes, one rather light-colored, tall, and weighing about 200 pounds, identified as the appellant, and the other a shorter and darker negro, entered the Jetmore residence.

The large negro then proceeded to march Mrs. Jetmore up stairs in an attempt to get her to disclose the location of a supposed wall safe. She denied having any such safe, or, in fact, any valuables. He finally found some diamonds and other jewelry, testified by her to have been worth in excess of $5,000. He then marched Mrs. Jetmore back down stairs. She most positively identified appellant as the tall, light-colored negro who compelled her to go up stairs with him. Mrs. McDaniel testified that appellant was the same size, color, and weight, and finally said that she was positive of his identity. The latter testimony was dragged out of her, upon cross-examination by appellant's counsel.

Some neighbor girls saw two negroes entering the Jetmore place and tried to call Jetmore and tell him about it. A strange voice answered the telephone. Those inside said appellant answered the telephone. Becoming alarmed, these girls called up the night watchman. Doubtless thinking the girls were overly excited, the night watchman guilelessly knocked on the front door of the Jetmore residence. One of the robbers met him at the door, covered him with a revolver, marched him in and relieved him of his gun, and sat him down with the other occupants of the house. All five of the captives were then marched up stairs and threatened with dire results if they came down. The lights were turned out. Thus the robbers made their escape.

As a circumstance, it was shown that late that night two negroes, whose descriptions tallied with those of the Jetmore robbers, compelled a Holden man to drive them from that city to Independence, Mo., where they got out of his automobile.

Appellant was arrested in Kansas City within a few days. He later sent for Jetmore and his wife and told them that he did not rob them, but that he knew who did do it. He said it was McFadden, Van Nelson, and Ned Holmes; that Ned Holmes looked so much like appellant that his own people could not tell them apart. Appellant told the Jetmores how the diamonds and jewelry had been disposed of. Upon being asked how he came to know so much, he intimated that such information was always current among the denizens of the underworld, of whom he was one.

The state offered testimony tending to show that on Tuesday, following the robbery on Saturday night, McFadden, Van Nelson, and appellant divided about nine or ten hundred dollars in the room of one Lucille White, a sweetheart of appellant. It was there said that the money was the proceeds received after disposing of certain "rocks." A diamond wrist watch was part of Mrs. Jetmore's loss. Such a watch was mentioned, but not shown at the time the proceeds of the loot were divided. Appellant gave this watch and sixty or seventy dollars to his sweetheart, and left $350 with Mrs. Midget, his landlady, for safe-keeping.

As a witness, appellant denied ever having been in Holden, except when on a train passing through. He denied being there the night of the robbery and denied that he was one of the robbers. He testified that he was gambling in Kansas City all the Friday night before and from about 1 o'clock p. m., Saturday afternoon, until the following Sunday morning; that he had won several hundred dollars during Friday night; and that this was the money divided up in Lucille White's room. He denied that either McFadden or Nelson was present at the time the money was divided and fixed such time as early Saturday afternoon before the robbery.

Appellant admitted telling the Jetmores that Ned Holmes was one of the robbers. Holmes was produced as a witness by the state and denied participation in the robbery. Whether or not he resembled the appellant is not disclosed by the record, but the jury had an opportunity to see him. The record does not disclose what became of McFadden and Nelson.

Lucille White, after a fashion, corroborated appellant as to his gambling on Friday and Saturday nights and the fact that he had three or four hundred dollars, some of which he gave her, and some of which he intrusted to his landlady, to the admitted displeasure of Lucille White. She said McFadden and Nelson were not present when the money was divided. She admitted that she and appellant were sweethearts, substantially living together and not married. She also admitted that she was the mother of a baby born out of wedlock, whose father was another than appellant.

Appellant testified that he had previously been convicted of robbery and sentenced to the penitentiary for 25 years and had been paroled. He had also been in the penitentiary for jail breaking. Without objection on the part of appellant's counsel, the state was permitted to introduce testimony of a witness tending to show that appellant's reputation as being a peaceable and law-abiding citizen was "exceptionally bad."

Appellant has filed no brief in this court. The assignments of error in the motion for new trial number 22, but they can be grouped into a few general subjects. The first assignment logically to be considered is that the court erred in refusing to give appellant a preliminary hearing upon the charge for which he was tried. The record is in well-nigh hopeless confusion. Matters of record proper are commingled with matters properly belonging in the bill of exceptions. After examining all these entries carefully, we are unable to find where appellant raised any question concerning a preliminary examination until it was raised in the motion for new trial. It was then too late. Furthermore, the record affirmatively shows that a preliminary examination was granted to appellant and that he was bound over to the circuit court. The charge made in the complaint filed before the justice was substantially the charge contained in the information. The assignment is not before us, and, if it were, it is utterly without merit.

The first, second, eighth, ninth, and twenty-first assignments of error strike at the information, `which is as follows:

"Nick M. Bradley, prosecuting attorney within and for the county of Johnson, in the state of Missouri, now here in court, on behalf of the state of Missouri, informs the court, under his oath of...