RAILEY
C.
On July
24, 1923, the grand jury of Jackson county, Mo., returned
into the circuit court of said county an indictment, which,
without caption, reads as follows:
'The
grand jurors for the state of Missouri, duly summoned from
the body of the county of Jackson, being duly impaneled,
sworn, and charged to inquire within and for said county,
upon their oaths present and charge that Don Newland, whose
Christian name in full is to said grand jurors unknown, at
the county of Jackson and state of Missouri, on the 9th day
of April, 1923, with force and arms, in and upon one T. C.
Lightner, unlawfully and feloniously did make an assault and
$ 22 in money, the same being good and lawful money of the
United States, of the value of $ 22, and the money and
personal property of the said T. C. Lightner, then and there,
by force and violence to the person of the said T. C.
Lightner, and by putting the said T. C. Lightner in fear of
an immediate injury to his person, feloniously did rob,
steal, take, and carry away, against the peace and dignity of
the state.
'Clarence
A. Burney, Prosecuting Attorney.'
Defendant
was arraigned, entered a plea of not guilty, and, upon a
trial before a jury, the latter, on October 24, 1923,
returned into court the following verdict:
'We,
the jury, find the defendant guilty of robbery first degree,
as charged in the indictment, and assess his punishment at
five years in the state penitentiary.
'William
H. Cameron, Foreman.'
Thereafter,
in due time, defendant filed motions for a new trial and in
arrest of judgment, both of which were overruled. On November
12, 1923, defendant was granted allocution, judgment
rendered, and sentence pronounced in conformity with said
verdict. An appeal in due form was granted defendant to this
court. On May 9, 1924, he filed his bill of exceptions in
said cause. The appellant filed no brief in this court.
Counsel
for the state have made a full and fair statement of the
facts, as follows:
'The
prosecuting witness, T. C. Lightner, who lived at 1417
Central, Kansas City, Mo., was employed by the Yellow Cab
Company. He worked from 2:30 in the afternoon until 11:30 at
night. On the 9th day of April, 1923, he was the owner of a
Ford car. On the last named date Lightner drove his Ford to
1419 Central street and got a young lady by the name of Irene
Claussner, whom he later married, and they drove to East
Eighth street, to No. 2004, between Euclid and Garfield
street. They got there about 12 o'clock. They stopped at
2004 East Eighth street, and got out and started in the house
at that number.
'The
girl started on in, while the witness, Lightner, locked the
car. He was just at the top of the terrace when three fellows
came out of the alley and told him to stick up his hands, and
that if he made a false move they would shoot him. He backed
up against the car, and defendant held a gun on him, while
the other two men robbed him of his money. There was an arc
light on the corner of the street, so that he had opportunity
to see defendant clearly. He was able to describe the
clothing that the defendant wore.
'These
robbers took about $ 22 from the prosecuting witness. They
took his Ford keys, and threw them down in the street about a
block from where they robbed him. He asked them to throw them
down in the street if they would not give them back to him.
'Lightner
positively identified the defendant in the courtroom as the
fellow who held the gun on him the night he was robbed. He
also testified that the defendant came around to him at one
time and threatened him if he appeared in his prosecution.
'Defendant
was not arrested for a few days after the robbery, although
during that time the prosecuting witness had seen him in
Kansas City.
'The
police officer who arrested the defendant testified that
Lightner came to him and pointed out the defendant as the man
who had robbed him. Defendant was in front of a cigar store
in Kansas City. The officer was not on duty at the time, and
did not arrest the defendant until he went on duty.
'The
evidence offered in behalf of the defendant tended to
establish an alibi, and was substantially as follows:
'Defendant's
wife testified that defendant was formerly employed at the
City Market; that he quit working there when his father had
his last stroke of paralysis, which occurred in the latter
part of March; and that he then stayed home with his father.
Witness was engaged to him, and visited him at his home
almost every day. She discussed with him the date of April
9th, after his arrest. She remembered that date on account of
the death of the husband of a lady friend of her
mother's. This man, James C. Wells, was killed in an
automobile accident April 9th. She called the defendant that
night, and asked him to go to the home of Mr. Wells, but he
said he could not go because his father was worse that
evening.
'Defendant's
brother testified that defendant quit his job at the City
Market the latter part of March because his father had a
stroke of paralysis and needed him at home. Defendant was at
home on April 9, 1923. Witness went to bed about 11:30 that
night, and defendant was still sitting up.
'Defendant
took the stand in his own behalf, and testified that he was
at home with his father on the night of April 9, 1923; that
his father, who was very low then, died June 7th, and was
buried June 12th. On the night of April 9th, defendant's
wife called him, and asked him to go with her to the house of
Mr. Wells, who had been killed in an automobile accident.
'Defendant
had seen the prosecuting witness around the cigar store at
1108 Baltimore street, and the prosecuting witness did not
seem to look at the defendant as if he were the man who had
robbed him.
'Defendant
testified further that there were no lights along Eighth
street, except gas lights,
and that it was pretty dark along there about 6 o'clock
in the evening.
'Newland
said he had never threatened the life of the prosecuting
witness, nor had he ever sent any one to offer him a bribe.
'Defendant
offered in evidence the record of his marriage to Lucile
Cline. Defendant also offered a record to show that James T.
Wells was killed in an automobile accident the 9th day of
April, 1923.'
The
instructions, rulings of the court, ect., will be considered,
as far as necessary, in the opinion.
Opinion.
I.
The case is here without any brief for appellant, and as the
sufficiency of the indictment is challenged by the motion in
arrest, it becomes our duty to pass upon the
question.
The
indictment is based upon section 3307, R. S. 1919, and
substantially follows the language of the statute. Its
sufficiency as to form and substance has been...
