State v. Tracy
| Decision Date | 01 December 1920 |
| Citation | 225 S.W. 1009,284 Mo. 619 |
| Parties | THE STATE v. JOE TRACY |
| Court | Missouri Supreme Court |
Appeal from Saline Criminal Court. -- Hon. John A. Rich, Judge.
Reversed and remanded.
W. H Meschede and Lynch, Kennedy & Guffin for appellant.
(1) The evidence was insufficient to sustain the verdict. State v. Francis, 98 S.W. 11; State v. Jones, 177 Mo 665; State v. Gordon, 98 S.W. 662; State v Prendible, 165 Mo. 350; State v. DeWitt, 190 Mo. 51. The witness Hezekiah Smith was impeached and discredited, and his testimony should not be permitted to stand. State v. Helton, 164 S.W. 457; State v. Huff, 161 Mo. 487; People v. Lyons, 51 Mich. 215; State v. Packwood. 26 Mo. 340; State v. Primm, 98 Mo. 373; State v. Prendible, 165 Mo. 352; State v. Gordon, 98 S.W. 39. (2) The verdict was the result of passion, prejudice or partiality on the part of the jury. State v. Primm, 98 Mo. 372; State v. Packwood, 26 Mo. 340; State v. Burgdorf, 53 Mo. 65; State v. Mansfield, 41 Mo. 470; State v. Danbert, 42 Mo. 238; State v. Jaeger, 66 Mo. 173; State v. Castor, 93 Mo. 242; State v. Prendible, 165 Mo. 353; State v. Webb, 162 S.W. 628. (3) Prejudicial error was committed by the attorney assisting the State in asking witness Atkinson if he had ever been arrested, and in making the statement before the jury that the same question could be propounded to witness McGrath for the defense, but it could not be shown if the defense objected to it. State v. Webb, 162 S.W. 628. (4) The court erred in admitting evidence about the boat which was found down the river, for the reason that no connection was shown between it and defendant. State v. Thomas, 99 Mo. 257.
Frank W. McAllister, Attorney-General, for respondent; Don C. Carter of counsel.
(1) The weight of the evidence on the credibility of the witnesses is for the jury, and if there is substantial evidence to sustain the verdict, this court will not interfere with, nor disturb it. State v. Reagan, 280. 57; State v. Oertel, 280 Mo. 129; State v. Underwood, 263 Mo. 685; State v. Concelia, 250 Mo. 420; State v. Bowen, 247 Mo. 595; State v. Reed, 237 Mo. 231. (2) Beyond the peradventure of a doubt, the defendant is guilty under the facts stated in evidence.
The defendant, Joe Tracy, having been found guilty of burglary in the second degree and his punishment having been fixed at confinement in the penitentiary for fifteen years, has duly appealed. We adopt the State's statement of the facts, with slight modifications.
On March 19, 1918, the Miami Savings Bank, a banking corporation in the City of Miami, Saline County, Missouri, was burglarized and some safety deposit boxes were removed from the vault, taken to the rear of the bank building, pried open, some of the contents of said boxes destroyed, and about six thousand dollars worth of Liberty bonds and about one hundred dollars' worth of thrift stamps were removed from said safety deposit boxes. Entrance to the bank had been effected by prying open the screen and window on the north side of the bank. The door to the vault of the bank had been penetrated with a fuse, and the fuse had been burned around the combination lock, and, in this way, the big steel door was opened. Inside of said vault was a large safe in which many valuables of the bank were kept. This was not opened, but there had been an attempt made to enter this safe by cutting into it.
On the morning of the 19th of March, Mr. Calvert, sheriff of Carroll County, had been called to the town of Miami for a woman who had been charged with some offense at Carrollton; he came from Carrollton down to the Carroll County side along about three or four o'clock in the morning to Miami Station, which is just across the river from the town of Miami. He hunted up the ferryman, a Mr. Rader, and requested him to ferry him across to the Miami landing. A Mr. J. A. Commons was with the sheriff at this time. They went to Mr. Rader's house and aroused him about three or four o'clock in the morning and then went down to the edge of the river in order to be ferried across. When they arrived at the usual ferry landing, they found a big automobile standing there by the river bank and in this automobile were three overcoats, a few empty grips and some other things. Mr. Rader, the ferryman, found that his boat had been removed from where he usually chained it to the landing, and it could not be found. He then located a boat belonging to another man and in this took the sheriff, Calvert, and Mr. Commons across the river to the Miami landing. As soon as they had landed, Mr. Rader fastened the boat to a log at the foot of the hill. He took a lock out of his pocket and locked his boat to this log.
Then the sheriff, Calvert, and Mr. Commons proceeded on up the hill to the town of Miami and took charge of the woman who was then in the custody of Mr. Hezekiah Smith, a justice of the peace at Miami, who had theretofore arrested this woman under orders from the sheriff of Carroll County. The sheriff, Mr. Commons, Mr. Smith and the woman all went back down to the ferry landing, preparatory to recrossing the river. Commons and Smith were a little distance ahead of Mr. Calvert and the woman, and they arrived at the river's edge first. When they got down there close to the river's edge, they saw three men sitting on a log close to a boat. One of the three men made some inquiry of Smith and Commons as to when they could get a ferry across the river; Commons had a flash light with him and he turned it on these three parties.
Immediately, one of them jumped up and pulled a gun on Mr. Smith, and one of the others jumped into the boat and attempted to cut this boat loose, so they could get out into the river. The other fellow grabbed hold of Mr. Smith and attempted to push him into the boat with them. They failed to do this, and Smith got away. Commons had already taken to his heels and proceeded back up towards town. Smith and Commons both called for the sheriff, and by the time the sheriff, Commons and Smith could get back down to the river bank, the three men had jumped into another boat and had gone on down the Missouri River. In the boat were found an acetylene gas tank, an oxygen gas tank, and a lot of gauges and tools of the kind that are used in melting steel, penetrating through steel vaults, and other steel material; in other words, a lot of burglar's tools.
All these parties then proceeded back up town and aroused the people, feeling that some crime had been committed by these men, and as soon as they got back up town, they discovered that the bank had been burglarized.
The boat in which the three parties aforesaid had escaped down the river was found the next day a mile or two from this Miami landing; the nearest railroad station from where this boat was found was Slater, Missouri, on the Chicago & Alton Railroad.
Late that night or early the next morning, about two or three o'clock, three men appeared at the railroad station, this defendant and two others, and one bought a ticket to Kansas City, and the other two men purchased tickets to St. Louis. The automobile, which was standing on the Carroll County side, at the ferry landing, mentioned heretofore, had been stolen from St. Louis, and the acetylene and oxygen gas tanks also came from St. Louis.
Defendant, Tracy, was arrested on Friday or Saturday following the robbing of this bank and was positively identified by Hezekiah Smith as being one of the three men sitting on the log at the foot of the river on the night in question. The ticket agent and his wife, Mr. and Mrs. Butts, at Slater, Missouri, also positively identified the defendant, Tracy, as being the man who appeared at the railroad station in Slater on Tuesday night or Wednesday morning and there had bought a ticket to Kansas City, Missouri. None of the Liberty bonds aforesaid were ever recovered. The defense was an alibi.
It should be noted that defendant denies that he was at Slater. Missouri, at the time and place stated in respondent's statement of the facts. Some fifteen witnesses testified in support of the alibi set up by defendant, and according to these witnesses defendant was in Kansas City Missouri, at the time of the commission of the burglary in question. Defendant did not...
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