State v. Kaplan
| Decision Date | 02 March 1929 |
| Docket Number | 29448 |
| Citation | 16 S.W.2d 35 |
| Parties | STATE v. KAPLAN |
| Court | Missouri Supreme Court |
Rehearing Overruled April 5, 1929.
Moss H Silverforb, of Kansas City, for appellant.
Stratton Shartel, Atty. Gen., and Mary Louise Ramsey, Sp. Asst. Atty Gen., for the State.
In the circuit court of Buchanan county, May 25, 1928, a jury found the defendant guilty of robbery in the first degree, and assessed his punishment at 10 years' imprisonment in the penitentiary. The court rendered judgment upon that verdict, and the defendant appealed.
The defendant was charged with robbing the Publix Theatre Company of the sum of $ 271.41, by force of arms, by putting in fear the employees (naming them), of the Publix Theatre Company. The information is in two counts. The first charged the defendant with a robbery and alleged facts to bring defendant under the Habitual Criminal Act (Rev. St. 1919, § 3702), and the second count charged him with robbery. He was found guilty on the second count.
The evidence for the state shows that the night of February 2, 1928, after the show was over, the defendant made his way into the box office of the theater, where the cashier, Miss Virginia St. Clair, was engaged in putting the money in a sack. W. T. Bond, manager, C. C. Collins, assistant manager, and one Harmon, employee, were also present. The defendant showed a revolver, which he held partly in his overcoat pocket, saying:
Almost immediately Roderick, who had not been present, pushed the door open against the defendant, who turned his revolver upon Roderick. This enabled Bond to escape. He went out and raised the alarm. Miss St. Clair was nervous, and experienced difficulty in getting the money into the sack, notwithstanding the robber told her to hurry. He finally took the sack, scooped up the money, and left. Harmon a little later saw him driving an automobile, and noted down the number of the license. Bond, Collins, Miss St. Clair, and perhaps others, identified defendant positively as being the robber.
The defense was an alibi.
I. It is asserted that the information does not sufficiently charge all the material elements of robbery under the Habitual Criminal Act. Since the defendant was convicted upon the second count, which did not charge the defendant under that act, the alleged error is of no importance to the defendant.
No objection is made that the trial proceeded to the end under both counts, and no complaint was made in the motion for new trial. The second count charges quite definitely and clearly that the defendant did, February 2, 1928, make assault upon W. T. Bond and Virginia St. Clair, and by force and violence, and by putting them in fear, take from them the sum of $ 267.41, the property of the Publix Theatre Company, with all other averments necessary to constitute a good information charging the robbery. The evidence was entirely sufficient to support the verdict.
II. Appellant complains that the court erred in refusing to allow him a continuance. Before the trial he presented his application on the ground of absent witnesses, whose supposed testimony he set out, all relating to his alibi. The application and affidavit, however, fails to state that affiant believed the facts, to which the absent witnesses would testify, to be true. This is absolutely necessary in an application for a continuance on account of absent witnesses. Section 3997, R. S. 1919; State v. Martin, 317 Mo. loc. cit. 313, 295 S.W. 543.
He complains further that the court should have granted him a continuance before the trial, because the newspapers on the day of the trial published an article setting out the steps defendant was taking in presenting his case to the court. The record fails to show that any such application was made before the trial, or that any such formal application was ever made. The defendant simply offered in evidence a clipping from a...
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