State v. Hahn

• Decision Date: 20 December 1926
• Docket Number: No. 27463.,27463.
• Citation: 289 S.W. 845
• Parties: STATE v. HAHN.
• Court: Missouri Supreme Court

289 S.W. 845

STATE v. HAHN.

No. 27463.

Supreme Court of Missouri, Division No. 2.

December 20, 1926.

Appeal from Circuit Court, Butler County; Charles L. Ferguson, Judge.

Dewey Hahn was convicted of robbery in the first degree, and he appeals. Affirmed.

Garry H. Yount and Byron Kearby, both of Poplar Bluff, for appellant.

North T. Gentry, Atty. Gen., and Claude Curtis, Sp. Asst. Atty. Gen., for the State.

WALKER, P. J.

At the April term, 1925, of the Butler county circuit court, the defendant, George Elliott, and Harry Drew were jointly charged by information with robbery in the first degree. The defendant was granted a severance, tried to a jury, found guilty as charged July 17, 1925, and sentenced to five years' imprisonment in the penitentiary. From this judgment he appeals.

E. M. Davidson, the victim of this robbery, was at the time the owner of a garage and oil filling station at Wilby in Butler county. On the night of the 8th of January, 1925, after he had retired, he heard some one drive up to the filling station and honk for him. He went out to see what was wanted. He found three men in a Ford car, who said they wanted oil and gasoline. He emptied one bottle of oil into the car where it is required to lubricate the machinery and placed the bottle on the running board of the car; he then reached for another bottle of oil and turned it upside down, with the neck down in the opening made for cylinder oil, when one of the men told him to look and see if they needed gasoline. He left the upturned bottle in the opening of the oil reservoir, and as he started to examine the gasoline tank he noticed that the belt of the fan was off. The man at the wheel raised up and removed the cushion from the seat and unscrewed the cap of the gasoline tank. Before he could make an examination as to the gasoline and while the cap was still removed the man who had lifted the seat drew a gun on him, and one of the others, who had gotten out of the car, ran up behind him with a club, and, going through his pockets, took therefrom $8 in money, consisting of silver halves, quarters, dimes, and nickels. The three men then hurriedly mounted the car and drove away in the direction of Poplar Bluff. Davidson had a flashlight at the time of this occurrence and saw the face of the man who sat in the front seat and who drew the gun on him, whom he identified as the defendant.

A few minutes after the robbery Davidson, in company with another, got into his car and followed the defendant's car to Poplar Bluff. Arriving there they found on the street an abandoned Ford car with an upturned bottle in the opening of the oil tank, the fan belt off, and grease marks on one of the running boards, indicating that an oil bottle had recently been placed there. The cap to the gasoline tank was also off. Davidson identified the defendant when he was apprehended by his voice and features as one of the men who had robbed him. Officers who arrested the defendant testified that they found on his person several dollars in halves, quarters, dimes, and nickels.

Defendant denied having committed the robbery, and testified that he was elsewhere at the time. One witness, in corroboration of defendant's statement as to his whereabouts the night of the robbery, testified that he saw him in Poplar Bluff at about the time the robbery was shown to have been committed. The jury did not believe the testimony for the defendant. No brief has been filed for the defendant. We must therefore, in examining the record, be guided by the defendant's motion for a new trial in determining the merit of his contentions.

I. It is contended that the information does not charge an offense; it was drawn under section 3307, R. S. 1919. This section, as applied to the facts at bar, requires that it be alleged that the defendant feloniously took the property of another from his person or in his presence and against his will, by violence to his person or by putting him in fear of some immediate injury to his person. The information contains all of these averments and hence is not obnoxious to adverse criticism. This information is but a rescript of many others which have met with our approval. In State v. Newland (Mo. Sup.) 285 S. W. loc. cit. 401, State v. Strada (Mo. Sup.) 274 S. W. 34, and in ...