State v. Trout, 35837.

• Decision Date: 03 May 1938
• Docket Number: No. 35837.,35837.
• Citation: 116 S.W.2d 103
• Parties: STATE v. TROUT.
• Court: Missouri Supreme Court

116 S.W.2d 103

STATE v. TROUT.

No. 35837.

Supreme Court of Missouri, Division No. 2.

May 3, 1938.

Appeal from Circuit Court, Stoddard County; James V. Billings, Judge.

Herman Trout was convicted of robbery with a dangerous and deadly weapon, and he appeals.

Affirmed.

L. E. Tedrick, of Poplar Bluff, for appellant.

Roy McKittrick, Atty. Gen., and Lawrence L. Bradley, of Kennett, for respondent.

BOHLING, Commissioner.

Herman Trout appeals from a judgment imposing twenty years' imprisonment for robbery with a dangerous and deadly weapon. The defense was an alibi.

Robbery in the first degree by means of a dangerous and deadly weapon, by a masked robber, resulting in the larceny of $1,270, the property of Albert and Hugo Boeving, from the possession of Lois Pittman about 8 p. m. on October 30, 1936, at the Boeving office in Dunklin county, Mo., stands unquestioned of record. Miss Pittman testified she had known Herman Trout for some time previous to the robbery, had seen him the week before the robbery, recognized the clothing of the robber, and that Herman Trout committed the offense. Mr. and Mrs. Elmo Robinson were in the office at the time. Mr. Trout was the husband of Mr. Robinson's sister. It was established that, as the robber was walking out, Mrs. Robinson said: "`Elmo that is Herman Trout'" and Elmo said: "`Well, hush up.'" Mrs. Robinson, called by the state, testified, on cross-examination, she would not positively swear Trout was the robber; and on redirect examination that at the time of the robbery she thought the robber was Herman Trout. Mr. Robinson, on behalf of defendant, testified: "I wouldn't swear it wasn't but I wouldn't swear it was," with reference to Trout being the robber. The state's evidence was sufficiently substantial to warrant the submission of defendant's guilt to the jury. Consult State v. Cushenberry, 137 Mo. 168, 179(1), 56 S.W. 737, 742(1).

The court permitted the prosecuting attorney to read the information to the jury over objection, with exception saved, to the "reading" of the information. The record states: "Whereupon, Mr. Ford reads the information and makes an opening statement to the jury on behalf of the state." This issue stands decided adversely to appellant by State v. Gilmore, 336 Mo. 784, 788(3), 81 S.W.2d 431, 432(3, 4), wherein the bill of exceptions set forth a copy of the information, including the affidavit of the prosecuting attorney; and we need not undertake to add to or repeat what was there said. In the instant case the court gave the usual instructions with reference to the information, the presumption of innocence, and the burden of proof. See, also, State v. Trice, 338 Mo. 744, 746 (2), 92 S.W.2d 135, 136(2); State v. Ransom, 340 Mo. 165, 100 S.W.2d 294, 296(2).

Appellant contends there was no testimony showing flight and that the prosecutor's argument, "Gentlemen of the jury when a man is innocent he doesn't flee from the officers," was improper. The officers obtained information appellant committed the offense soon after the robbery. They devoted the night, keeping appellant's home under surveillance, to an unsuccessful effort to apprehend appellant. Appellant testified that he stepped out the back door when a highway patrolman drove up in front of his place of business soon after the robbery; that a few minutes thereafter he remembered he had hit a man with an iron pipe and thought the man was having him...