State v. Willhite
| Decision Date | 13 March 1942 |
| Docket Number | 37772 |
| Citation | 159 S.W.2d 768 |
| Parties | STATE v. WILLHITE |
| Court | Missouri Supreme Court |
L. J Reidel and J. A. Gochenour, both of St. Louis, for defendant.
Roy McKittrick, Atty. Gen., and W. J. Burke, Asst. Atty. Gen for respondent.
BOHLING, Commissioner.
Jesse Easter Willhite appeals from a judgment imposing a sentence of five years' imprisonment for an assault with intent to rob, with a prior conviction as charged, in accordance with the verdict of the jury. § 4409, R.S.1939, Mo.St.Ann § 4015, p. 2821.
Appellant's brief assigns error in the 'overruling of his demurrer to the evidence at the close of the State's case.' This was waived by appellant offering evidence in his behalf. State v. Barr, 336 Mo. 300, 302[1], 78 S.W.2d 104, 105[1], citing cases; State v. Kelly, Mo.Sup., 107 S.W.2d 19, 20[5]. Beryldine Yeigh was cashier for the American National Insurance Company at its office on the second floor of a building in St. Louis, Missouri, situate across the street from the Lindell Trust Company. On March 19, 1940, about 9:30 a. m., she left the office with $ 834 in cash and $ 60 in checks in a canvas money bag, stamped 'Lindell Trust.' She noticed a man in the lobby of the entrance of the building watching her as she proceeded down the stairs. At the trial she positively identified appellant to be the man. When she started to open the door to the entrance of the building, appellant came up behind her, grabbed her across the shoulders, turned her around, hit her in the stomach and kept trying to get the money bag from her. Miss Yeigh struggled with him and started screaming. Appellant watched the stairs and out the glass entrance. Thornton W. Wissore was crossing the street, approaching the building, and heard the screaming. Appellant thereupon released his hold on Miss Yeigh and ran out the door. Wissore pursued him. Appellant succeeded in making his escape, only to be picked up by the police two or three days later. The identification of appellant as Miss Yeigh's assailant was for the jury. She testified that the American National Insurance Company was a Texas corporation, doing business in Missouri. We have considered that the existence of a corporation may be proved by general reputation. § 4077, R.S.1939, Mo.St.Ann. § 3688, p. 3239; State v. Jackson, 90 Mo. 156, 159, 2 S.W. 128, 130; State v. Fitzsimmons, 30 Mo. 236, 240.
Appellant's counsel requested a mistrial because the prosecutor, during the closing argument, stated that counsel for appellant had requested, in open court, a recess and, following the recess the appellant's wife was called as the next witness. In the colloquy which followed, the court, evidently seeking counsel's statement of his reasons for the drastic action of declaring a mistrial, remarked that the statement was true, which appellant's counsel...
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