RAILEY, C.
On December 18, 1924, there was filed in the circuit court of the city of St. Louis, Mo., by the assistant circuit attorney of said city, a verified information, which, omitting formal parts, reads as follows:
"Roy A. Fish, assistant circuit attorney in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the state of Missouri, upon his official oath, information makes as follows:
"That Michael Flynn and Robert Whittaker, on the 25th day of November, in the year of our Lord one thousand nine hundred and twenty-four at the city of St. Louis aforesaid, with force and arms, in and upon one Walter Jackson feloniously did make an assault; and the said Walter. Jackson, in fear of an immediate injury to his person then and there feloniously did put, and by force and violence to his person $11, lawful money of the United States, of the value of $11 all of the money and property of the said Walter Jackson, from the person and in the presence of Walter Jackson, and against the will of the said Walter Jackson then and there, with force and violence as aforesaid, feloniously and violently did rob, steal, take, and carry away, with the felonious intent then and there to permanently deprive the owner of the use thereof, and to convert same to their own use, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state."
Defendant was arraigned, entered a plea of not guilty, obtained a severance, was tried before a jury, and the latter, on February 19, 1925, returned the following verdict:
"We, the jury in the above-entitled cause, find the defendant guilty of robbery in the first degree, as charged in the information, and assess
the punishment at imprisonment in the penitentiary for five years.
"Wm. Koopman, Foreman."
The defendant excepted to the return of said verdict, and thereafter, on February 20, 1925, filed his motion for a new trial, which was overruled on April 9, 1925. Thereafter, on April 25, 1925, judgment was rendered and sentence pronounced in conformity with the verdict aforesaid. An appeal was granted defendant to this court.
Counsel for respondent have made a fair and accurate statement of the case as disclosed by the record, which we adopt as follows:
"The state offered the evidence of two witnesses: namely, Walter Jackson, and Officer Rudolph Bruns.
"Walter Jackson testified that on the 25th of November, 1924, he was driving a delivery wagon for the S. D. Rossi Wholesale Grocery Company at St. Louis; that about 2 o'clock in the afternoon he left the Rossi Grocery House with a wagon full of groceries destined for various grocery stores in remote sections in the southwestern part of the city; that about 6 o'clock in the evening, when he had reached a point near the intersection of Columbia and Sublette avenues, a man who was afterwards identified as Robert Whittaker rushed out in the street, halloed `Stick them up' to the witness, and threw a gun on the witness; that the witness stopped his team, and the defendant, Flynn, held the horses while the said Whittaker robbed the witness of $11; that it was generally dark at that time, but that there was light enough at this point from a street lamp to enable the witness to identify the robbers; that, after the robbery, the witness continued to make deliveries of groceries; and that about 7:30 in the evening he was again passing near the scene of the robbery at a point near the intersection of Cooper and Southwest avenues, when he was again held up by the defendant, Flynn, and the said Robert Whittaker; that on this occasion the defendant and Whittaker got up on the wagon seat, and were in the act of robbing the witness when Officer Bruns, a mounted policeman, passed the delivery wagon; that the witness called to the officer, and told him that the men were attempting to hold him up; whereupon the officer arrested Whittaker and the defendant, and started with them to a police station signal box; that on the way to the signal box the said Whittaker escaped, but the defendant was held and sent to jail.
"Officer Rudolph Bruns testified that about 7:30 on the evening of November 25, 1924, while he was riding north on Cooper avenue just north of Columbia avenue, he saw a delivery wagon standing in Cooper avenue; that just as he passed the delivery wagon some one halloed `Officer'; that he turned around, and went back to the delivery wagon, and the witness Jackson informed him that Whittaker and Flynn were holding him up; that Whittaker replied that Jackson was a liar, but the defendant made no comment. Officer Bruns testified that he placed Whittaker and Flynn under arrest, but that Whittaker escaped on the road to the police signal box. Bruns further testified that Whitaker and Flynn were in the wagon seat with the witness Jackson at the time Jackson called to him.
"The defendant testified in his own behalf and to the effect that he met Whittaker about 6 o'clock on the evening of...
