State v. Williams

• Decision Date: 05 June 1924
• Docket Number: 25326
• Citation: 263 S.W. 198
• Parties: STATE v. WILLIAMS
• Court: Missouri Supreme Court

263 S.W. 198

STATE v. WILLIAMS

No. 25326

Supreme Court of Missouri, Second Division

June 5, 1924

Jesse W. Barrett, Atty. Gen., and Geo. W. Crowder, Asst. Atty Gen., for the State.

OPINION

HIGBEE, C.

The defendant was indicted January 31, 1923, for robbery in the first degree from the person of William Eldridge. He was tried February 20, 1923, found guilty, and his punishment assessed at imprisonment in the penitentiary for a term of 25 years. The statement of facts prepared by Assistant Attorney General Crowder reads, in part:

'The evidence shows that appellant, assisted by confederates committed a bold highway robbery on five messengers including the said William Eldridge, of the Drovers' National Bank of Kansas City, Mo., while said messengers were leaving a branch post office located in the Live Stock Exchange building in that city on the 12th day of December, 1922, at the hour of about 1:30 p. m. There were at least three of the robbers, and the evidence shows that they forcibly took possession of and carried away about $ 97,000 in money, this being the money of the Drovers' National Bank, but in the personal possession of the said William Eldridge and four other messengers of the bank. In the commission of this robbery appellant shot and very seriously wounded Thomas F. A. Henry, and, for a time made good his escape. Later, about December 26, 1922, appellant was arrested in the city of New Orleans, La., where he had gone in company with one Ruth Adcock and James Caverty and the latter's wife. The evidence shows that at the time, and shortly before the robbery, James Caverty lived in what was called the Oregon Flats in Kansas City, Mo., at which place appellant and certain of his confederates temporarily stopped.'

The defendant was the leader of a gang of desperate outlaws. As the messengers of the Drovers' National Bank were leaving the branch post office the defendant thrust a revolver against Eldridge's body, and by means of force and violence robbed him and the others of the money, and, with his accomplices, made his escape in a motor car. This circumstance of itself characterizes the crime as robbery in the first degree. Section 3310b, Laws, 1921, p. 280.

The defendant was also convicted of the crime of feloniously shooting and wounding Thomas F. A. Henry at the time of the robbery. On his appeal in that case the conviction was affirmed, and an opinion was written by Railey, C., which clearly states in detail the facts in connection with the robbery. See (Mo. Sup.) 263 S.W. 195.

The appellant has filed no brief.

The chief error complained of in the motion for new trial is the refusal of a continuance. The record shows that on February 2, 1923, the defendant appeared in court in person, and by attorney entered a plea of not guilty, and the trial was then specially set down for Monday, February 19. No witnesses were subpoenaed for the defendant, nor was any preparation made by him for the trial. On Saturday, February 17, while the defendant and his attorney were present, the court distinctly informed them that the case would be called for trial on the morning of February 19. When the case was then called, Mr. Nugent, defendant's attorney, obtained leave to prepare an application for a continuance. After consulting with the defendant, Mr. Nugent announced to the court that he and the defendant could not agree, and that he was compelled to withdraw from the case.

'By the Court: I cannot help that; you can't continue the case. I will have to appoint somebody.

'Mr. Nugent: I could not give him a fair trial. (Defendant excepts.)'

Thereupon the court appointed another attorney, Mr. Kirwan, to represent the defendant. After conferring with the defendant, Mr. Kirwan stated to the court that the defendant had been in jail, and ought to be given time to get his witnesses.

'The Court: If the witnesses have been subpoenaed, and they are not in attendance upon the court, and you make application in the proper way, the court will look after that; but you say he has not his witnesses. Anyhow, the case has been set for some time, for weeks, and that it would be taken up this morning, and Saturday it was set specially. It costs, to run this Division, about $ 400 a day.

'Mr. Kirwan: I understand that.

'The Court: If a man can get a continuance by having a little trouble with his counsel, after he has been given the right of way, and told in advance he would have the right of way, we never can get any case for trial, and you will have to impanel the jury and do the best you can for him. I have appointed you for him. He has had counsel. (To which action and ruling of the court the defendant then and there at the time duly excepted and still excepts.)

'Mr. Kirwan: If you will give me a chance, I will make application for a continuance. I have to have time to prepare it, to show what he expects to show by his witnesses.

'The Court (to Mr. Lynch): Do you waive a written application.

'Mr. Lynch: Yes.

'By the Defendant: This man [Kirwan] knows nothing about the case. I ask for a continuance and a change of venue.

'By the Court: Impanel a jury.

'By the Defendant: I don't want to get kangarooed outright. I have my rights. A man has not got a ghost of a chance; he is kangarooed out of his rights.

The...