State v. Spivey
| Decision Date | 03 June 1918 |
| Citation | 204 S.W. 259 |
| Parties | STATE v. SPIVEY. |
| Court | Missouri Supreme Court |
Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.
Mildred Spivey was convicted of robbery in the first degree, and she appeals. Affirmed.
Hueston & Calloway, of Kansas City, for appellant. Frank W. McAllister, Atty. Gen., and Shrader P. Howell, Asst. Atty. Gen., for the State.
The appeal is from a conviction of robbery in the first degree. The defendant, a colored woman, was charged with having robbed one C. B. Hume on the night of the 13th of July, 1917.
1. No exception to the admission or rejection of evidence, or the giving or refusing of instructions, is saved by the motion for new trial. An amended motion for new trial was filed something like a month after the Judgment was rendered in which amended motion some particular evidence objected to was attempted to be set out. The amended motion, filed out of time, cannot be considered. State ex rel. v. Ellison, 256 Mo. 644, loc. cit. 664, 165 S. W. 309.
One point made in the motion for new trial was that the defendant had discovered new evidence which was competent and material to the issues. This alleged newly discovered evidence is not set out in any form, by affidavits nor otherwise, and no witness is named by whom it could be produced. It therefore presents no reason for sustaining the motion for new trial. State v. McCullough, 171 Mo. loc. cit. 575, 71 S. W. 1002; State v. Walker, 232 Mo. loc. cit. 261, 262, 134 S. W. 516.
II. The only point for consideration is whether the evidence was sufficient to support a conviction of robbery. Defendant claims that, at most, the evidence shows only larceny.
Hume was a white man, unmarried, and had a room at the corner of Eighth and Oak streets. He was employed as a switchman, working in the yards of the Missouri Pacific Railway Company at Kansas City, his shift being from 3 o'clock in the afternoon until 11 o'clock at night. The alleged robbery took place at about 1 o'clock in the morning as he was on his way home from work. Hume explained his delay in getting home by saying that he had to clean up and change his clothes and eat his supper after he quit work before going up town. He took a car in the East Bottoms, which brought him to the corner of Fifth street and Grand avenue, and from that point, instead of writing for a south-bound car, as was his custom, to take him to his destination, he started to walk. While walking on Grand avenue, when near the corner of Sixth street, he met the defendant, Mildred Spivey. According to his story, the woman walked up in front of him, and, to use his language, "shoved me up against the wall and wanted me to go to a room with her." He declined the invitation, and while the conversation was going on a negro man came from across the street, and two negro women came from behind Hume, and then the defendant, to use his own language, "threw her arms around me and put her hand in my pocket and took my money out, and I started to fight her, and this negro man took out a knife and made a remark that he would cut me and for me not to bother her or fight her, and they all broke and ran, and I grabbed her and tore her waist off and hollered for help, and the officer was close by, and he came down and arrested this woman." The amount of money taken was $40 or $45 in bills, which were folded together in the witness' pocket.
On cross-examination the witness described how the defendant grabbed him, and said, "I started to go away, and she put one arm around me and the other hand in my pants pocket, and took my money, and I started to knock her down." In further explanation he stated that while he was "arguing with her" (indicating it was before she took the money) the negro man stepped upon the sidewalk, and witness knew he and the other two women were part of the gang, "because when she grabbed my money I attacked her and he knocked me down;I was trying to catch her." The negro man knocked him down after the woman had obtained his money.
The officer who made the arrest stated that as he was coming down Grand avenue he saw "some tussling on the street down there like somebody was fighting." When he got to the corner of Sixth and Grand they were out of sight, had turned the corner, but immediately they all came back, and defendant pointed at the woman and said that she had robbed him. Hume was "hollering" and wanted the woman arrested. It seems there were a number of negroes on the sidewalk at the time while Hume was in the middle of the street presenting his lamentation to the policeman. After the arrest evidence of a struggle appeared when Hume's hat was found lying on the sidewalk where he claimed to have been robbed; also two buttons which were identified as having been torn from the waist of the defendant.
It was shown that the defendant was a person of bad character. She said herself that she had "lived a wayward life," and many instances of her conviction for misdemeanors were shown. Her explanation of her presence on the street at the time of night in question was not consistent with the pursuit of a lawful occupation. She admitted the struggle, the losing of her buttons, but said Hume was "crazy drunk." She denied taking his money, and denied that other negroes were present at the time.
In order to constitute robbery in the first degree the property must be taken...
To continue reading
Request your trial
-
State v. Wilborn
... ... It was then held that the violence used was not contemporaneous with the taking of the property. As distinguished from the facts of the Parker case, the factual situation of this case is comparable in some respects to the 'snatching with force' cases. In State v. Spivey, 204 S.W. 259 (Mo.1918), it was said: 'Snatching a valuable article from another is always denominated robbery where any force is exercised either to overcome resistance of the person robbed or in detaching the article taken where it is fastened in some way to the clothing or person of the one ... ...
-
State v. Dulaney
... ... Hawkins, Mo., 418 S.W.2d 921; State v. Ray, Mo., 354 S.W.2d 840; State v. Thompson, Mo., 299 S.W.2d 468. By the same token the record here does not support the inference of a mere sudden snatching of the gun (State v. Sommers, 12 Mo.App. 374) or even a strong-arm robbery (State v. Spivey, Mo., 204 S.W. 259) or an instance of only such force as would be exerted in filching money from a victim's pocket by the use of a hand (State v. Parker, 262 Mo. 169, 170 S.W. 1121, L.R.A.1915C, 121), the record here supports the charge and finding that the violence and fear preceded or was ... ...
-
United States v. Ash, s. 17-3223 & 17-3245
... ... Wray , 776 F.3d 1182, 1184 (10th Cir. 2015). That provision defines "crime of violence" in part as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... has as an element the use, attempted use, or threatened use of physical force ... Spivey , 204 S.W. 259, 261 (Mo. 1918) ("Snatching a valuable article from another is always denominated robbery where any force is exercised either to ... ...
-
State v. Vandament
... ... The applicable law is reviewed at length in the case of State v. Holmes, en Banc, 317 Mo. 9, 295 S.W. 71, 58 A.L.R. 652. And see State v. White, 326 Mo. 1000, 34 S.W.2d 79; State v. Sharpe, 326 Mo. 1063, 1067, 34 S.W.2d 75; State v. Clemons, 356 Mo. 514, 202 S.W.2d 75, 78; State v. Spivey, Mo.Sup., 204 S.W. 259; State v. Parker, 262 Mo. 169, 170 S.W. 1121, L.R.A.1915C, 121 ... Section 560.120 RSMo 1949, V.A.M.S., provides that 'every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, ... ...