State v. Ferguson
| Decision Date | 15 February 1916 |
| Docket Number | No. 19275.,19275. |
| Parties | STATE v. FERGUSON. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, St. Louis County; Gustavus A. Wurdeman, Judge.
Thomas Ferguson was convicted of first degree robbery, and he appeals. Affirmed.
From a judgment sentencing him to five years' imprisonment in the penitentiary, on a conviction of first degree robbery, defendant appeals.
The state's evidence discloses that on December 6, 1914, Otto H. Enoch, motorman, and Fred Koehler, conductor, were engaged in the operation of a street car belonging to the United Railways Company. At about 8 o'clock on that evening, and when approaching the terminus of their division at Meramec Highlands, the defendant and a confederate named Clark boarded the car with revolvers in their hands, and commanded the conductor to "throw up" his hands. Defendant went immediately to the front of the car and commanded the motorman to do likewise, at the same time pointing his revolver at the motorman. The motorman manifested some reluctance to comply with the command and was promptly shot in the leg. This ended arguments and brought speedy submission. While defendant was thus engaging the motorman, Clark, his confederate, was attempting to forcibly remove from the conductor's strap the "changer," which was a metal device with receptacles for different denominations of coin, and containing at the time $13.25. During all this time Clark was "covering" the conductor with his pistol, and after obtaining possession of the "changer" and its contents he and the defendant left the car and hurriedly made their escape.
Several days later these parties were apprehended and positively identified by both the motorman and conductor. A police officer testified that when he went to place defendant under arrest the defendant undertook to escape, leaving the house from the rear without either hat or coat. In his suitcase was found a revolver, which the conductor testified resembled the one used on the occasion of the robbery.
On the part of the defendant one witness, for whom he had previously worked, testified that his reputation for honesty, integrity, and veracity was good. The defendant also offered evidence tending to establish an alibi, three witnesses testifying that on the night in question, and at the time of the robbery, defendant was at the home of one Samuel Hill, a cousin of Clark's.
This constitutes a sufficient statement of the facts, since no question is raised as to the sufficiency of the evidence.
Joseph C. McAtee, of Clayton, for appellant. John T. Barker, Atty. Gen. (Lewis H. Cook, of Jefferson City, of counsel), for the State.
REVELLE, J. (after stating the facts as above).
I. To reverse the judgment defendant relies upon two propositions: (1) The failure of the prosecuting attorney, until the day of the trial, to indorse on the information the name of one witness who was permitted to testify; and (2) the alleged cross-examination of defendant upon matters concerning which he did not testify on direct examination.
Anent the first insistence, the record discloses that the names of the principal witnesses had been timely indorsed on the information, and that a subpœna for the witness whose name was not so indorsed had been duly issued and served some time prior to the trial. Defendant's counsel was also aware, before the jury was sworn, that the prosecuting attorney would request permission to indorse the name of the other witness on the information. This was done, and the permission granted. No motion to quash, or application for continuance, or for further time, was filed after defendant learned that this witness would be offered by the state. Section 5097, R. S. 1909, provides:
"When an indictment is found by the grand jury, the names of all the material witnesses must be indorsed upon the indictment; other witnesses may be subpœnaed or sworn by the state, but no continuance shall be granted to the state on account of the absence of...
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