State v. Woodard

• Decision Date: 05 June 1925
• Docket Number: No. 26170.,26170.
• Citation: 273 S.W. 1047
• Parties: STATE v. WOODARD.
• Court: Missouri Supreme Court

273 S.W. 1047

STATE v. WOODARD.

No. 26170.

Supreme Court of Missouri, Division No. 2.

June 5, 1925.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

J. W. Woodard was convicted of attempt to rob a bank, and he appeals. Affirmed.

T. H. Douglas and L. Cunningham, both of Bolivar, for appellant.

Robert W. Otto, Atty. Gen., and james A. Potter, Sp. Asst. Atty. Gen., for the State.

WALKER, P. J.

The appellant was charged by information in the circuit court of Polk county with an attempt to rob a bank. Upon a trial before a jury he was convicted and his punishment assessed at two years' imprisonment in the penitentiary. From this judgment he appeals.

The bank attempted to be robbed was in a building located in Bolivar. The offense occurred at midday, between 12 and 1 o'clock, October 12, 1923. The only person in the bank at the time was a clerk named Woodruff. Two citizens, named Adams and Brock were in the former's office at the time. This office " was located on the same floor and in the same building as the bank. The clerk testified to his identification of the appellant at the time of the offense. Adams testified that while he and Brock were seated in the former's office they heard an alarm which caused him to go into the vestibule of the building and thence into the bank, where he saw but did not recognize some one who was staging the "holdup." He returned to his office, told Brock what he had seen, and then ran out to notify some of the officers of the bank what was occurring. He then returned to his office and saw the appellant, who came out of the bank building and got into his automobile which was standing just across the curb and drove away, The witness in addition described the manner in which the appellant was dressed..

Brock testified that when apprised of the attempted robbery he went out into the vestibule and as he did so the appellant came out of the banking room and spoke to him as he passed. His description of the manner in which the appellant was dressed was the same as that of Adams.

The bank clerk testified that while he was alone and at work during the noon hour in the bank he heard sounds that indicated that some one was entering or had entered the banking room. He started towards the front part of the room, and, as he reached a gate separating the room he was in from the front office, a man arose and leveled a gun at him but said nothing. The witness made an outcry and threw up his hands. The man ordered him into the vault towards which he backed, keeping his eyes on his assailant as he entered the vault. The man then attempted to close and lock the vault doors, but for some reason he failed in this effort. While he was thus engaged the witness recognized him as Woodard, the appellant. He was dressed as described by the other two witnesses and had a handkerchief over a portion of his face. Another witness, named Bayte, testified that he was at a barn near the appellant's house in Bolivar on the day of the attempted robbery, and while there he saw the appellant, some time between 12 and 1 o'clock" midday, approaching his residence in an automobile. The witness called to the appellant and asked him to come down to the barn. Appellant said, "Wait a minute." He then alighted from his car, went to a smokehouse near his residence, entered it, remained there a few minutes, and then came out and talked to the witness. Another witness for the state, named Wimberly, testified that soon after the arrest of the appellant on the day of the crime he went to the latter's residence and found a loaded pistol concealed in his smokehouse.

Numerous relatives of the appellant, including two of his children, said they saw him at different times during the forenoon of the day of the crime, and that his dress was entirely different from that described by witnesses for the state. Five witnesses swore that his reputation was good prior to the charge of the attempted robbery. Appellant denied his guilt. He admitted that he had gone to the bank building about the time of the attempted robbery; that his purpose in going was to see the proprietor of a telephone company whose office was on the second floor of the bank building; that as he was returning from the telephone office he met Brock, witness for the state, and spoke to him, and saw the witness Adams on the sidewalk, but that at no time during the visit to the building was he in the banking room.

The condition of this transcript is one of almost inextricable confusion. Its most glaring fault consists in duplications by which matters properly belonging only in one subdivision of the transcript are found both in the record and the bill of exceptions. No tenable excuse can be offered for this condition. Our rules of procedure clearly define by statute and numerous cases the manner in which a transcript should be prepared and afford ample information to enable those charged with the preparation of records for this court to properly inform themselves as to their duty. The failure so to do entails much unnecessary labor on this court.

I. The overruling of defendant's plea in abatement constitutes the first assignment of error. The burden of this plea is that the second amended information upon which the appellant was tried does not embody the same charge that was made against him before a justice of the peace, and that the appellant has not been accorded a preliminary examination on the information.

That a preliminary examination was accorded the appellant when the complaint was filed against him before the justice of the peace is admitted in his plea of abatement. This right having been extended to him, the only remaining question is as to whether the complaint filed before the justice of the peace charges the same offense as that preferred against him in the information. Each charges an attempt to rob the bank. The first, as we said in State v. Flannery, 263 Mo. loc. cit. 587, 173 S. W. 1053, may not define the crime with the precision and formality prescribed in the books, but it does so with enough certainty to leave no doubt as to the time, the place, and the nature of the offense charged; while the second, with that formal particularity required by the rules of pleading, charges the same offense, viz. an attempt to commit the robbery by putting the clerk in charge of the bank in fear of immediate danger to his person; the substantial allegations being the same in both and couched in terms easily to be understood, no reason exists to sustain the conclusion that the defendant did not understand the charge made against him in each. It is therefore but the threshing of old straw in the presence of our rulings upon almost every phase of this contention as exemplified in the...