State v. Schooley
| Decision Date | 02 March 1929 |
| Docket Number | No. 29099.,29099. |
| Citation | 14 S.W.2d 628 |
| Parties | THE STATE v. ROY SCHOOLEY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Wayne Circuit Court. — Hon. E.M. Dearing, Judge.
AFFIRMED.
Verne Lacy for appellant.
(1) The court erred in failing to grant the defendant a continuance, as requested by the defendant, for the reasons set out in the several affidavits filed by the defendant for a continuance. State v. Maddox, 117 Mo. 667; State v. De Witt, 152 Mo. 76; State v. Hesterley, 182 Mo. 16; State v. Klinger, 43 Mo. 127; McKay v. State, 12 Mo. 492; Sec. 3997, R.S. 1919. (2) The Supreme Court reserves the right to inquire into the facts of each case and reverse the case if the continuance was improperly refused. McLane v. Harris, 1 Mo. 501; Riggs v. Fenton, 3 Mo. 28; Tunstall v. Hamilton, 8 Mo. 500; State v. Wood, 68 Mo. 444; State v. McGuire, 69 Mo. 197; State v. Walker, 69 Mo. 274: State v. Farrow, 74 Mo. 531; State v. Lewis, 74 Mo. 222; State v. Berkley, 92 Mo. 441; State v. Anderson, 96 Mo. 241; State v. Klinger, 43 Mo. 127. (3) To warrant the admission in evidence of instrument or weapon as the one or ones with which the crime was committed, a prima-facie showing of identity and connection with the crime is necessary. 16 C.J. 619, sec. 1225; Second Permanent Annotations, 582 and 583. (4) The court was without jurisdiction over the case of the State v. Frank L. Smith or over the person of Frank L. Smith. Secs. 3973, 3974, R.S. 1919; State v. Dyer, 139 Mo. 199. (5) The trial court erred in allowing Frank L. Smith to testify over the objections and exceptions of the defendant, because his name was not indorsed on the information. The defendant had no knowledge, information or belief that Smith would be used as a witness by the State, and his testimony came as a surprise and prejudice to the defendant. Sec. 3889, R.S. 1919; State v. Roy, 83 Mo. 268; State v. Grady, 84 Mo. 220; State v. Barrington, 198 Mo. 23; State v. Steifel, 106 Mo. 129; State v. Nettles, 153 Mo. 469; State v. Brown, 145 S.W. 118; State v. Kehoe, 220 S.W. 961; State v. Pierson, 270 S.W. 347. (6) The court erred in failing to reprimand the Special Prosecutor, Terry, for the remark made in the presence and hearing of the jury, wherein he stated that he withdrew the question because he did not want "reversible error" in the case. State v. Upton, 109 S.W. 821; State v. Hyde, 136 S.W. 318; State v. Rasco, 144 S.W. 449. (7) The amended information is bad because it is duplicitous and alleges the commission of more than one criminal offense in the same count on different days and dates. State v. Green, 24 Mo. App. 227; State v. Sutton, 64 Mo. 107; State v. Porter, 26 Mo. 201; State v. Stowe, 132 Mo. 199. (8) The defendant was denied due process of law and the equal protection of the law by being tried upon information containing other charges than the charge upon which he was convicted. Mo. Constitution, art. 2, secs. 22 and 30; State v. Stowe, 132 Mo. 199; State v. Murphy, 141 Mo. 267; State v. Newman, 96 Wis. 258; King v. State, 49 Ind. 210; State v. Wilburn, 25 Tex. 738; Huett v. State, 25 Tex. 722. (9) The court erred in failing to discharge the defendant Schooley at the close of the State's case when it appeared on trial that Harry Huffendieck, described in the indictment as John Doe, was known to the Prosecuting Attorney, George V. McCormack, and he should have been so described and named by his name of Harry Huffendieck and his identity not concealed by the Prosecuting Attorney from the defendant under the name of John Doe. State v. Stowe, 132 Mo. 199; State v. Norman, 232 S.W. 452; Bill of Rights, Art. 2, par. 22; 14 R.C.L. 183, par. 28; Martin v. State, 115 Ga. 255.
Stratton Shartel, Attorney-General, and A.B. Lovan, Assistant Attorney-General, for respondent.
(1) The following authorities uphold the ruling of the trial court as to the sufficiency of the information: State v. Roderman, 297 Mo. 147; State v. Roberts, 278 S.W. 972. It was proper to charge in the information that the property was in the custody of the cashier and that the property belonged to the bank. It would have been sufficient if the charge had been made that the property belonged to the cashier. State v. Reich, 293 Mo. 422; State v. Williams, 183 S.W. 310; State v. Wilhite, 295 S.W. 82; State v. Craft, 253 S.W. 224. (2) On the question of diligence alone, the court was justified in overruling the application for continuance. The question of a continuance rests largely in the discretion of the trial court and its action will not be disturbed by this court where the record does not show that such discretion was oppressively exercised. State v. Wilson, 242 S.W. 887. (3) The revolvers and shotgun were found near the place where the defendant was arrested and near the place where the stolen property was found. The law does not require that there be positive proof connecting the defendant with the ownership, custody or possession of weapons. (4) The witness Smith was jointly charged with appellant. The court had the right to direct that he be discharged so that he might be used as a witness for the State. Sec. 4035, R.S. 1919. (5) The Circuit Court of Wayne County had jurisdiction over the defendant Smith and had authority under the statute to direct that he be discharged, because the change of venue was properly and legally taken by agreement of the parties. State v. Taylor, 132 Mo. 287; State v. Nave, 185 Mo. 134. Section 4035 authorizes the court to direct that the defendant be discharged "at any time before the defendants have gone into their defense." (6) While the statute provides that the names of all material witnesses must be indorsed on an indictment, it also provides that other witnesses may be subpoenaed and used by the State. Sec. 3889, R.S. 1919; State v. Steifel, 106 Mo. 133; State v. Pinson, 291 Mo. 335. (7) There was substantial evidence to sustain the charge against the defendant Schooley. State v. Concelia, 250 Mo. 424.
After a change of venue from Jefferson County, appellant was tried in Wayne County and convicted of the crime of robbery in the first degree. He was jointly charged with others, but was separately tried. The jury assessed his punishment at imprisonment in the state penitentiary for a term of ten years and he has appealed from the judgment entered on said verdict.
At about 11:30 o'clock in the forenoon of Saturday, September 25, 1926, three armed men entered the Citizens Bank of Festus in Jefferson County. One guarded the lobby and overawed the customers, while the other two passed behind the bank counter and compelled the cashier to lie down on the floor while they scooped up several thousand dollars in money and bonds. All three men then left the bank and were driven away rapidly in a waiting automobile.
Roger Elliott was a customer engaged in cashing a check at the cashier's window when the robbers entered the bank. As a witness, he positively identified appellant as the robber who compelled him, at the point of a revolver, to lie down on the floor during the robbery. A Mrs. Moss entered the bank during the progress of the robbery and was detained in the lobby, but refused to lie down on the floor. She testified that appellant was not the man who guarded the lobby. She identified Smith, of whom we shall hear more later, as that man. She was quite thoroughly impeached in this respect by proof of several previous statements inconsistent with her testimony as a witness.
Upon the departure of the robbers, an immediate alarm was given and the officers of adjacent cities were notified and given a description of the robbers and the automobile driven by them. Edward Staat, a deputy sheriff, who operated a garage and sold farm machinery at Antonia, testified that, just after he received telephone advice of the robbery and a description of the automobile used by the robbers, an automobile answering such description passed rapidly through Antonia and he and others pursued that automobile in an automobile belonging to said Staat. They were not certain of the identity of the occupants of the fleeing automobile until a shot was fired by one of the men in the pursuing automobile and the fire was immediately returned by the pursued men. The fleeing automobile was halted temporarily, because of a collision with another automobile, and the pursuers came up close to them before the robbers' car could be extricated and proceed. Staat testified that appellant was one of the men at that point who opened fire on the officers in the pursuing automobile and held them back until the robbers' automobile could proceed. Staat's identification of appellant at that time and place was definite and positive and on cross-examination was unshaken.
The fleeing automobile then succeeded in getting out of sight of the pursuers and evidently turned off the main highway while so out of view. The pursuers went on until they learned that the fleeing automobile had not passed the point where inquiry was made. Thereupon, they turned back and followed a dim road leading to a club house at House Springs on the bank of Big River. At about half way between the main road and the club house they came upon the automobile which they had been following. It was stalled in the mud. There appellant and one Ball put in an appearance. They came out from the club house to the stalled automobile. Ball opened the door of the automobile and looked in and took out and handed to the officers a box containing bonds, which were afterward shown to be the property of the bank and to have been taken in the robbery. In the subsequent search of the premises adjacent to the club house, a large amount of money was found in a sack hidden in the weeds and covered from view. Some revolvers and a shotgun were also found. One of the revolvers was identified as one taken from the bank by the robbers.
There can be no question under the evidence that the automobile found stalled in...
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