State v. Walton

• Decision Date: 17 February 1914
• Citation: 255 Mo. 232,164 S.W. 211
• Parties: STATE v. WALTON.
• Court: Missouri Supreme Court

164 S.W. 211

255 Mo. 232

STATE v. WALTON.

Supreme Court of Missouri, Division No. 2.

February 17, 1914.

1. CRIMINAL LAW (§ 572) — EVIDENCE — WEIGHT AND SUFFICIENCY—ALIBI.

On a trial for robbery, evidence offered to establish an alibi held unconvincing; and hence the jury was justified in disbelieving it.

2. CRIMINAL LAW (§ 1167)—APPEAL—HARMLESS ERROR.

The amendment of an information charging a robbery from the person and against the will of F. by adding "and in the presence of said F.," though it constituted a variance, did not change the nature of the crime charged, nor the degree of punishment which might be inflicted, and, while its allowance after the jury had been sworn and witnesses examined might in some cases constitute a fatal error, it was not prejudicial, where the only defense was an alibi, which was not rendered more difficult to sustain by the amendment, and the amendment did not necessitate the calling of other witnesses, nor did accused ask for time to subpœna other witnesses.

3. INDICTMENT AND INFORMATION (§ 161) — AMENDMENT—STATUTORY PROVISIONS.

Rev. St. 1909, § 4970, providing that an information may be amended at any time before the case is finally submitted, and that no amendment shall cause a delay of the trial except at the instance of defendant for good cause shown, though somewhat sweeping in its phraseology, authorizes only such amendments as do not change the nature or degree of the charge or the defense which might be interposed.

4. JURY (§ 103)—CHALLENGE TO PANEL— GROUNDS.

Where, though several jurors, after the jury had been selected and before they were sworn, read newspaper articles commenting upon the widespread interest in the trial, the fact that defendant would attempt to prove an alibi and the usefulness of the defense of alibi to a certain noted criminal, upon re-examination by defendant's attorney and the court before the defendant made his peremptory challenges, they testified that they were not, by reason of such articles, prejudiced against defendant or the defense of alibi, the court did not err in refusing to discharge the jury and summon a new panel.

5. CRIMINAL LAW (§ 628)—INDORSEMENT OF NAMES OF WITNESSES ON INFORMATION — COMPETENCY OF WITNESSES NOT INDORSED.

On a criminal trial, the court did not abuse its discretion in permitting the state to introduce witnesses whose names were not indorsed on the information, and whom defendant did not know would be called, where the prosecuting attorney satisfactorily showed that he did not know he would call such witnesses until shortly before the trial, and that he did not purposely withhold their names from defendant's attorney, especially as Rev. St. 1909, §§ 5057, 5097, requiring such indorsement, were not enacted solely to aid the accused, but were designed in part to regulate the taxation of costs and the granting of continuances on the part of the state.

6. CRIMINAL LAW (§ 656)—TRIAL—REMARKS OF COURT.

Where defendant had made several attempts to impeach or discredit a witness for the state by proof of the commission of specific crimes, for which she had not been convicted, a remark by the court, in excluding proof of one of such crimes, that they could not try every witness in the case, or that, if they did, they would go into ramifications that would last the rest of their lives, was not without justification, and could not have harmed defendant.

7. CRIMINAL LAW (§ 358) — RECEPTION OF EVIDENCE—OBJECTIONS.

On a trial for robbery, on which accused attempted to prove that he was in Chicago at the time of the robbery, admission of evidence that the police force of Chicago was looking for him on that day and for several days prior thereto was not error, where the only objection to the question was that it was leading and suggestive, especially where there was no evidence that the police visited the home of defendant's sister, where it was claimed that he was stopping, and it therefore had little or no bearing in the case.

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

John C. Walton was convicted of robbery in the first degree, and he appeals. Affirmed.

John T. Barker, Atty. Gen. (Paul P. Prosser, of La Plata, of counsel), for the State.

BROWN, J.

Upon a trial in the criminal court of Jackson county, defendant was convicted of robbery in the first degree, and appeals from a judgment fixing his punishment at 14 years in the penitentiary.

On the morning of July 20, 1911, a jewelry store in Kansas City, owned by one B. J. Franklin and his brother, was robbed of diamonds valued at $4,100 by two unmasked men. The state contends that defendant is one of the men who robbed the store, while defendant rests his defense upon an alibi. Evidence covering 900 pages was submitted to the jury, and, while in his motion for new trial defendant's counsel assigns 40 alleged errors of the trial court, he has not favored us with a brief.

That the Franklin store was robbed is not disputed, and to establish the alleged fact that defendant participated in the crime the state introduced evidence, the general outline of which runs as follows: That defendant came to Kansas City in the fall of 1909 and opened a small cigar factory, which he operated less than three months; then selling his tools and going away. This evidence pertains to the question of identity. That about July 14, 1911, defendant returned to Kansas City, and remained in that city until the 20th day of July, at which time he and a man named William Rock committed the robbery. More in detail, the state's evidence tends to prove that one Thomas Bolton, a bartender of Kansas City, became acquainted with defendant at Davenport, Iowa, in 1904, at which city defendant made cigars and frequented a saloon kept by said witness. On coming to Kansas City in 1909, defendant renewed his acquaintance with Bolton and the latter introduced him to one Herman Oppenheimer, whose son was in the bonding business. Oppenheimer's son furnished a bond to the government for defendant as a cigar manufacturer. In filing this bond, defendant gave the name of John C. Walton.

The defendant was positively identified by Bolton, the bartender, as the same man who established the cigar factory. He was also identified by Oppenheimer; by a woman from whom he rented rooms for his cigar factory; by her 15 year old son, who did some work for defendant stripping tobacco; by one Frank Loefler, who sold him leaf tobacco and bought defendant's tools when the latter went away; and by a jeweler who marketed one or two diamonds for defendant in the fall of 1909. He was also identified by some six other witnesses as the same man who made cigars in Kansas City in 1909, but their acquaintance with him was slight, and their evidence not important.

After leaving Kansas City in 1909, defendant was not heard of again until a few days before the robbery, when he went into the jewelry store and talked with the Franklin brothers about 15 minutes in regard to a diamond worth $700 or $800, which he expressed a desire to purchase. A day or two later the Franklins observed defendant looking through their window at their display of diamonds. On that day he did not go into the store.

About 8:15 on the morning of July 20, 1911, while B. J. Franklin was opening the safe where the firm's diamonds were kept at night, defendant walked into the store and began talking about the proposed diamond purchase. Presently another stranger named William Rock came in, and, after offering Franklin a piece of paper, seized him by the throat, and the two men pushed Franklin a few steps away from his safe. In this scuffle defendant fired a shot at Franklin, who fell to the floor and feigned insensibility. As soon as Franklin fell, defendant took a tray or box containing $4,100 worth of diamonds out of the safe, and the two strangers started to run away. Franklin arose and pursued them some 35 yards to the saloon where witness Bolton was working. At the saloon door defendant halted long enough to fire a second shot at Franklin. This shot also went wild, and wounded one Seitz who was passing along the street. Defendant ran through the saloon and escaped.

Bolton, the bartender, testified that, on coming to Kansas City in 1911, defendant again renewed his acquaintance with witness; that defendant and Rock came into the saloon several times a few days before the robbery; that they were in the saloon shortly after 6 o'clock the morning of July 20th; and that defendant came in again after the robbery about 9 o'clock a. m. and asked what became of his partner. Bolton was corroborated in regard to this last visit by another bartender in the same saloon.

One Ella Wonser, who kept a rooming house, testified that defendant rented a room from her six days before the robbery. That about 10 o'clock on the morning of the robbery defendant came into his room, changed his clothes and put on a cap, leaving a panama hat which he had been wearing, and did not again return. Mrs. Wonser's identification of defendant was most positive. Her daughter, Mrs. Hill, who was at the time helping to run the rooming house, likewise identified him. Two witnesses who were on the street identified defendant as the man who ran out of Franklins' store with a box or tray under his arm. Two witnesses testified that Mrs. Wonser's reputation was bad, but the other witnesses who testified for the state were not impeached.

All the witnesses for the state testified that defendant wore a mustache when he was in Kansas City in the years...