State v. Brazel

• Decision Date: 19 March 1925
• Docket Number: 25783
• Citation: 270 S.W. 273
• Parties: STATE v. BRAZEL
• Court: Missouri Supreme Court

270 S.W. 273

STATE v. BRAZEL

No. 25783

Supreme Court of Missouri, Second Division

March 19, 1925

Sam J Corbett, of Caruthersville, for appellant.

Jesse W. Barrett, Atty. Gen., and Ellison A. Poulton, Asst. Atty Gen., for the State.

OPINION

Statement.

RAILEY, C.

On March 7, 1923, the prosecuting attorney of Pemiscot county Mo., filed in the circuit court of said county a verified information which, without caption and verification, reads as follows:

'Now comes Shelley I. Stiles, prosecuting attorney, within and for the county of Pemiscot, who in this behalf prosecutes for and in the name of the state of Missouri, and upon his official oath informs the court that on or about the 15th day of November, 1922, at and in the county of Pemiscot and state of Missouri aforesaid, one Willie Brazel, Frank Reed, and Charles Birthwright in and upon one H. H. Wall unlawfully and feloniously did make an assault, and $ 30 lawful money of the United States of the value of $ 30, the property of the said H. H. Wall, from the person and against the will of the said H. H. Wall, then and there by force and violence to the person of the said H. H. Wall, feloniously did rob, steal, take, and carry away, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Missouri. Shelley I. Stiles, Prosecuting Attorney, Pemiscot County, Mo.'

Defendant waived a formal arraignment, and entered a plea of not guilty. He was tried before a jury, and, on April 5, 1923, the following verdict was returned:

'We, the jury, find the defendant guilty as charged in the information, and assess his punishment at imprisonment in the penitentiary for a term of five years.

'Lamar Thompson, Foreman.'

Defendant, in due time, filed a motion for a new trial, which was overruled. On April 19, 1923, the court pronounced sentence upon defendant, and rendered judgment in conformity to said verdict. On the following day he was granted an appeal to this court.

Upon examination of the transcript we find that the material facts of the case are fairly stated by counsel for respondent, and are hereby adopted as our statement of the case, as follows:

State's Evidence.

On the 15th day of November, 1922, H. H. Wall was sitting on the sea wall across the railroad tracks and at the foot of Ward avenue in Caruthersville, Pemiscot county, Mo. Wall was fairly drunk, but retained enough of his faculties to recognize people that he knew and to know what was going on. He had a pocketbook containing three $ 10 bills in his left-hand hip pocket. Appellant and two other boys came up, grabbed him, and ran around a neighboring building occupied by an undertaker. Appellant's two companions held Wall's arms, and while he was thus held appellant reached in his left-+ hand hip pocket and took out the pocketbook against his will and without his permission. Appellant then walked or ran off with the pocketbook and the money.

The police, who were immediately informed, searched for appellant and his companions, and saw appellant running in the direction of the negro quarter of the town. One of appellant's companions, being arrested, confessed, and the police found the empty pocketbook where he said it had been thrown down. The police then went to the store of one John Nelson within 15 minutes after the robbery had occurred and found appellant there. Appellant, upon seeing them, dodged behind the counter in an attempt to hide. After appellant was taken to the police station, the owner of the store telephoned that appellant had hidden a pistol in the store, and the police went back and took it.

After the robbery and prior to the arrest, appellant showed $ 15 or $ 20 to one Ollie O'Keane, which he said he had made that day without doing much of anything to earn it.

Defendant's Evidence.

The evidence for the defendant tended to prove that two strangers, neither of whom was the appellant, grabbed Wall at the time and place mentioned by the state's witnesses and took him 75 feet or more to the left and out of sight; that appellant was not anywhere near there at that time.

Two witnesses testified that the reputation of Mamie Rogers, one of the witnesses for the state, in the community in which she lived for virtue and chastity was bad. Mamie Rogers was further impeached by testimony showing that she had pleaded guilty to a charge of assaulting with a knife one Orace Scott.

The instructions, rulings of the court, and any other matters arising upon the record which may be deemed important will be considered in the opinion.

Opinion.

I. It is contended by appellant that instructions 1 and 3 given by the court, purported to cover the entire case, and ignored the defense of an alibi.

These instructions required the jury to find that appellant was present, aiding, abetting, etc., in the commission of the robbery, before they could convict him. The jury were properly instructed as to all the law that was necessary for their information in arriving at their verdict, as required by section 4025, R. S. 1919, and State v. Conway, 241 Mo 271, 145 S.W. 441, and similar cases. The prosecuting witness, H. H. Wall, testified that appellant, while two other persons were holding him (witness), took from the latter's pants' pocket, without his consent, a pocketbook containing three $ 10 bills, etc. The state likewise produced other substantial testimony tending to show that defendant was present, and was the person who robbed Wall. Appel...