State v. Kocian

• Citation: 208 S.W. 44
• Decision Date: 23 December 1918
• Docket Number: No. 21053.,21053.
• Parties: STATE v. KOCIAN.
• Court: Missouri Supreme Court

208 S.W. 44

STATE v. KOCIAN.

No. 21053.

Supreme Court of Missouri, Division No. 2.

December 23, 1918.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Joseph Kocian was convicted of robbery in the first degree, and he appeals. Affirmed.

Defendant, convicted of robbery in the first degree, has appealed in the conventional way.

The facts adduced upon the trial tend to prove that defendant and an unknown man robbed one Frances Lakas, who kept a cigar store and confectionary at 8300 Minnesota avenue, in the city of St. Louis, under the below circumstances: Mrs. Lakes being alone in her little store, an unknown man came in and purchased a package of cigarettes, and left the store. Some 20 minutes later this man came back into the store, followed by the defendant. The unknown man wanted this time to buy a nickel's worth of candy. After Mrs. Lakas had completed the sale of the candy and made change for the purchaser, she turned to ascertain what the defendant wanted, and saw that he had a pistol drawn and aimed at her. Touching the further acts and language of defendant and of herself, this witness, says "I looked at the gun and at him and he said, `Come on, Mom, and let us have that.' I thought he wanted my money, and put my hand on the bowl where there were three dimes. He said, `Give it all here.' He took the money in his left hand and put it in the left coat pocket. I said to him, `Young man if this is the kind of a thing you are doing for a living, God help you.' He raised his gun and drove me to the other side, where had a counter for groceries. He forced me to open the cash register and give him every cent there was in it, in all, about $7, or $8. When I handed him the money he walked away and said, `Now, not a word of this, or a whimp, of this, or something else will happen.' By this time was ready to fall to the floor. He ran away. The other fellow pointed to the counter and said to me, `Have you got a gun?' I told him `no' and he ran away. I was able to walk and looked around outside, but couldn't nee anybody, and did not know what way they went."

Some ten days after this, the defendant was brought into the store of the prosecuting witness, where he was instantly identified by her. Upon the trial she also identified defendant fully. Some little corroboration was afforded by the police officers, but in the main the conviction was secured upon the testimony of Mrs. Lakas alone.

The defense was an alibi and the previous good character of the defendant. The alibi was by no means conclusive or satisfying, and became under the countervailing and positive identification of defendant as the person who was present in her store and who robbed her, a question for the jury.

Many other facts, matters, and things occurred upon the trial, explanatory of questions raised on this appeal, but these will be set down in our opinion in connection with our discussion of the points urged for reversal.

Edw. W. Foristel, of St. Louis, for appellant.

Frank W. McAllister, Atty. Gen., and. S. E. Skelley, Asst. Atty. Gen., for the State.

FARIS, J. (after stating the facts as above).

I. Defendant complains that the record does not show that the information upon which he was tried and convicted was ever filed in the trial court. We are of the opinion that this contention is untenable upon the facts disclosed by the record. For while it is true there Is no formal entry upon the solemn records of the court as disclosed by the transcript, showing that the assistant circuit attorney came into court and filed the information upon which defendant was convicted, nevertheless the information, as the certified copy before us shows, is indorsed:

"Filed, November 17, 1917, Henry C. Echterhoff, Clerk of the Circuit Court, City of St, Louis (for Criminal Causes)."

This is a sufficient showing that the information, which is not otherwise complained of, was in fact filed in the court wherein defendant was tried and convicted. State v. Campbell, 210 Mo. 202, 109 S. W. 706, 14 Ann. Cas. 403; State v. Meinhart, 73 Mo. 563; State v. Grate, 88 Mo. 22; State v. Pitts, 58 Mo. 556.

II. It is next complained that the learned trial court erred in overruling an application for a continuance said to have been made by defendant. Much space is devoted by defendant's learned counsel in 1(is brief to this point. It is enough to say that neither the record proper nor the bill of exceptions shows that such a motion was ever filed or acted upon. The first time such an application, or any mention thereof, appears in the record is in the motion for a new trial, to which there is appended an affidavit made some three days after defendant's trial and conviction. It is needless to say that the affidavit for a continuance, which is required by statute (sections 1956, 5204, R. S. 1909; Kelley's Crim. Law & Proc. § 338), comes too late when filed after defendant's trial and conviction.

III. Defendant filed an application for a change of venue, bottomed upon the alleged bias and prejudice of the "inhabitants of the county" (sic) to an extent it is averred which precluded a fair trial. This application was overruled by the trial court on the ground that it was not supported by the affidavits of at least two credible disinterested citizens of the city wherein the cause was pending. Since the statute requires such an application to be so supported (section 5180, R. S. 1909), and since no such compurgators supported this application, it is obvious that the application was properly overruled.

IV. In the course of the trial defendant offered one Anna Huber, who testified that his reputation was good. Upon the cross-examination of this witness she was asked by the state's counsel whether she had not heard that defendant was arrested upon the charge of having robbed one John C. Boney. An objection of a sort having been interposed to this question by defendant, the question was, after a lengthy colloquy, withdrawn without a categorical answer. Thereafter the witness was...