State v. Moore
| Decision Date | 05 March 1935 |
| Docket Number | No. 34018.,34018. |
| Citation | 80 S.W.2d 128 |
| Parties | STATE v. MOORE. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Ozark County; Robert L. Gideon, Judge.
James Moore was convicted of robbery committed by the use of a dangerous and deadly weapon, and he appeals.
Affirmed.
G. W. Rogers, of Gainesville, and Neale, Newman & Turner, of Springfield, for appellant.
Roy McKittrick, Atty. Gen., and James L. Hornbostel, Asst. Atty. Gen., for the State.
An information was filed in the circuit court of Christian county, Mo., charging the appellant with the crime of robbery committed by the use of a dangerous and deadly weapon. On a change of venue the cause was sent to the circuit court of Ozark county, where the appellant was tried; the jury found him guilty and assessed his punishment at ten years in the penitentiary. The trial court added two years to that assessed by the jury by virtue of section 4428, R. S. (Mo.) 1929, Mo. St. Ann. § 4428, p. 3044.
Evidence on the part of the state tended to show that about noon on August 11, 1933, appellant robbed the bank of Christian county, at Ozark, Mo., obtaining $468. At the time of the robbery there were four people in the bank, Mr. Taylor, the cashier, Mr. Leonard, assistant cashier, and two customers. Appellant partially concealed his identity by having a handkerchief around his face and a hat pulled down over his eyes. He entered through the rear door of the bank and exhibited a revolver, commanding the employees and the customers to go into the vault and close the door. About two minutes later they released themselves. The four persons in the bank identified appellant as being the person who wielded the gun. The report of the robbery was given, and the sheriff and his deputies started in search of the robber.
Earlier in the day the sheriff's attention was directed toward a car which was parked on a road about one-half mile from the bank and he requested a neighbor to watch it. Shortly after the robbery was committed he sent a deputy to this car, and within a very short time the appellant was seen coming from behind some bushes, he unlocked this car and attempted to drive away when he was arrested by the deputy sheriff. When they searched the car they found $468 and a revolver in the pocket, some damp clothing, and a pair of wet shoes in the back seat. Evidence tended to show that he changed his clothes immediately after the robbery.
Appellant denied any knowledge of the robbery, but testified that the night before he had been kidnapped, blindfolded, and tied to a tree; that they released him the next day, gave him the keys to his car, and directed him towards it and that he had started to drive away when he was arrested.
I. Appellant contends that his motion to quash the information should have been sustained. The amended information, omitting formal parts, charged that the appellant did rob, take, steal and carry away $468, being the lawful money and property of the Christian County Bank, by then and there putting J. S. Taylor, its servant and agent, who was then and there in charge of the money, in fear of immediate injury to his life, limb, and person; by then and there pointing at and towards Taylor, a pistol, a dangerous and deadly weapon, and by locking Taylor in the vault, and willfully and feloniously did then and there rob, steal, and carry away the money of the bank in the presence of and against the will of J. S. Taylor and from the possession and control of the bank.
Section 4058, R. S. (Mo.) 1929, Mo. St. Ann. § 4058, p. 2856, defines robbery in the first degree, and section 4061, R. S. (Mo.) 1929, Mo. St. Ann. § 4061, p. 2863, fixes the punishment to be inflicted if the robbery is committed with a dangerous and deadly weapon. It is true that the information does state that the money was in possession and control of the Christian County Bank, but it is also true that the information charges that Taylor was its servant and agent "who was then and there in charge of said money." We think this is sufficient compliance with the statute, and we also think the information sufficiently charges that it was taken from Taylor. A very similar information was approved by this court in the case of State v. Yates, 252 S. W. 641. The robbery herein charged was committed "by means of a dangerous and deadly weapon"; a pistol was appropriately alleged. Such allegation invoked the more severe penalty prescribed in the first provision of section 4061, supra. The fact that the information fails to allege that the pistol was "loaded" does not keep it from being a dangerous and deadly weapon. In the case of State v. Kowertz, 324 Mo. 748, 25 S.W.(2d) 113, 115, we held that in an indictment the using of the words "loaded with gunpowder and leaden balls" to be clearly surplusage. We hold that the information is sufficient. It fully informs the appellant of the offense of which he stood charged, and did not prejudice the substantial rights of the appellant. Section 3563, R. S. 1929, Mo. St. Ann. § 3563, p. 3160.
II. Appellant assigns as error the action of the trial court in admitting in evidence a certified copy of the articles of agreement for incorporation of the Christian County Bank for the reason that the charter would be the best evidence. J. S. Taylor testified that he was in the banking business; that he held the position of cashier of the Christian County Bank for thirteen years and was its managing officer; that it had a board of directors; that certain persons own shares of stock; that Mr. Kerr was president; and he named the board of directors. Section 3688, R. S. (Mo.) 1929, Mo. St. Ann. § 3688, p. 3239, provides: "If on the trial or other proceeding in a criminal cause, the existence, constitution or powers of any banking company or corporation, shall become material, or be in any way drawn in question, it shall not be necessary to produce a certified copy of the charter or act of incorporation, but the same may be proved by general reputation, or by the printed statute book of the staté, government or country by which such corporation was created."
We think for the purposes of this case there was sufficient proof to comply with this section. The appellant did not claim the money as his own. His defense was an alibi. Whether the Christian County Bank was a de facto or a de jure corporation, a partnership or an individual, is not material to the appellant's defense or in the establishment of his guilt. State v. Hedgpeth, 311 Mo. 452, 278 S. W. 740; State v. Tracy, 294 Mo. 372, 243 S. W. 173; State v. Taylor (Mo. Sup.) 274 S. W. 47. We hold there was no prejudicial error in admitting the certified copy of the articles of agreement.
III. Complaint is made that the court erred in permitting Taylor to state that the...
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