State v. Martin

• Decision Date: 24 November 1908
• Citation: 113 S.W. 1089,214 Mo. 383
• Parties: STATE v. MARTIN.
• Court: Missouri Supreme Court

113 S.W. 1089

214 Mo. 383

STATE v. MARTIN.

Supreme Court of Missouri, Division No. 2.

November 24, 1908.

1. ROBBERY (§ 24)—EVIDENCE.

Evidence in a prosecution for robbery considered, and held sufficient to establish the crime and that it was committed by defendant.

2. CRIMINAL LAW (§ 721½)—TRIAL—REMARKS OF COUNSEL.

In a prosecution for robbery, the wife of the person alleged to have been robbed testified that her husband came home on the night in question in a dazed condition, and had remained in that condition until his death, 12 days later. Held, that it was competent for the prosecuting attorney to allude to the wife's testimony and the death of her husband in the course of his argument in order to account for his absence as a witness.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Martin, alias Red King, was convicted of robbery, and appeals. Affirmed.

Henry M. Walsh, for appellant. Herbert S. Hadley, Atty. Gen., and F. G. Ferris, Asst. Atty. Gen., for the State.

GANTT, J.

The prosecution of this case was begun April 24, 1907, by information filed by the assistant circuit attorney in the circuit court of the city of St. Louis, charging that the defendant and Albert Kapp on the 6th of April, 1907, at the city of St. Louis, feloniously committed an assault in and upon one John F. Huppert, and by force and violence to his person did rob, steal, take, and carry away one gold-filled American Waltham watch, one gold-filled watch chain, one Royal Arcanum charm, one pocketknife, one pocketbook and 35 cents in money, all of the value of $50, from the person of the said John F. Huppert, and against his will, with the intent then and there to deprive him of the use thereof and to convert the same to their own use. The defendants were duly arraigned and pleaded not guilty, and on the 27th of May, 1908, were tried before a jury and each was found guilty, and the punishment of each assessed at imprisonment in the penitentiary for 20 years. In due time the defendants filed their motions for new trial, which were overruled, and thereupon the court reduced the punishment of the defendant King to 10 years in the penitentiary and sentenced him accordingly, and from that judgment he appeals to this court.

The testimony introduced by the state tended to show that John F. Huppert was a barber residing at 1423 Blair avenue, and working at 2219 North Broadway, in St. Louis. At about 6 o'clock on the morning of Saturday, April 6, 1907, Huppert left his home for his place of business. He was wearing at the time his gold watch and chain and charm, and carried his pocketknife, finger nail trimmer, pocketbook, and small change. At about 11:45 that night he returned home in a very bad condition; over his right eye was a deep cut as if made by a blunt instrument, his eye was swollen, his face bruised, he was bleeding profusely at the nose and mouth, and his clothes were covered with dust, dirt, and blood, and one of his pockets was torn. He was very weak from loss of blood, and was in a dazed condition, in which he remained for about 12 days, when he died. His watch and chain and the other articles named were gone, and the pocket that was torn was bloody. About 150 or 200 feet from Huppert's residence, on the route of his usual travel to and from his place of work, was an alley opening into Blair avenue. At a point in said alley, at its entrance from Blair avenue, was found, a short time after Huppert's return home that night, a pool of blood, and from this point to his home was a trail of blood. About 10 feet from the pool of blood in the alley was found a piece of his watch chain. It further appeared in evidence that at Fourteenth street and Cass avenue about one block and a half from the said alley at Blair avenue was a warehouse and wagon and coal yard, where, on the night of the said 6th day of April, 1907, a number of boys and young men, among them were George Harris, Joseph Wallace, James Miller, Peter Niesen, and the defendants, Albert Kapp and Red King, were congregated and engaged in drinking beer. About 11:30 that night Kapp and the defendant King left their companions at that place and were gone about 20 minutes, returning just before midnight, out of breath, excited and with their clothes mussed up. Upon being asked by Niesen, one of the said party, as to what was the matter, one of them said it was none of their business, and to the same inquiry put by another companion they replied that they had held up a man on Blair avenue and got a watch off of him, and they were going out before they got arrested. Niesen testified, "They came back and said that they had a watch and thirty cents, and they had better pull out before the cops got them," and "then they said they stuck up a fellow at Blair and Cass and got thirty cents and a watch." Niesen testified that it was his impression that it was Kapp who did this talking, and Miller, another of the party, thought that it was the defendant King that did the talking. Harris testified, "I remember Kapp coming in, and he said he had held up a fellow on Blair and Cass avenue for a watch." About 12 o'clock, the defendants Kapp and King being in the act of taking their leave of the party, two officers approached, and they all ran. The...