The State v. Butler

• Decision Date: 20 December 1926
• Docket Number: 27438
• Citation: 289 S.W. 636,316 Mo. 264
• Parties: The State v. George Butler, Appellant
• Court: Missouri Supreme Court

289 S.W. 636

316 Mo. 264

The State v. George Butler, Appellant

No. 27438

Supreme Court of Missouri

December 20, 1926

Appeal from Jackson Circuit Court; Hon. Nelson E. Johnson Judge.

Affirmed.

Ed. E Aleshire and George Hornecker for appellant.

North Todd Gentry, Attorney-General, for respondent.

Railey C. Higbee, C., concurs.

OPINION

RAILEY

On September 21, 1925, the Assistant Prosecuting Attorney of Jackson County filed in the Criminal Division A of the Circuit Court of Jackson County, a verified information, which, omitting formal parts, reads as follows:

"Now comes Alpha N. Brown, Assistant Prosecuting Attorney for the State of Missouri, in and for the body of the County of Jackson, and upon his oath informs the court that John D. Ingram and Geo. Butler, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 7th day of September, 1925, at the County of Jackson, State of Missouri, with force and arms, in and upon one Joe Fotivez unlawfully and feloniously did make an(d) assault, and thirty-seven dollars of the good and lawful money of the United States, of the value of thirty-seven dollars, the money and personal property of the said Joe Fotivez, from the person and against the will of said Joe Fotivez then and there, by force and violence to the person of the said Joe Fotivez and by putting the said Joe Fotivez in fear of an immediate injury to his person, feloniously did rob, steal and carry away; against the peace and dignity of the State."

Defendant was arraigned, entered a plea of not guilty, was granted a severance, and on October 20, 1925, after a trial before a jury, the following verdict was returned:

"We, the jury, find the defendant George Butler guilty of robbery in the first degree as charged in the information and assess his punishment at five years in the penitentiary at five years."

Thereafter motions for a new trial and in arrest of judgment were filed and overruled. On November 2, 1925, allocution having been granted, judgment was rendered, sentence pronounced in conformity with said verdict, and an appeal allowed defendant to this court.

The trial court appointed counsel for defendant, who represented him in the trial, and who have filed in this court type-written briefs, but have not made a statement of the facts. Counsel for respondent have made a full and fair statement, however, which reads as follows:

"The State's evidence was to the effect that the prosecuting witness, Joe Fotivez, was a day laborer; that he was living at the Portland Hotel on Main Street in Kansas City Missouri; that he had been working on a pipe line and had recently been paid his wages; that on the 7th day of September, 1925, he was sitting on the sidewalk at the corner of Sixth and Main Streets, Kansas City, Missouri, at the noon hour; that forty or fifty other men were sitting along the sidewalk at this place, it being the custom of laborers in that vicinity to sit there during the noon hour; that while the prosecuting witness was sitting on the sidewalk smoking, the defendant, George Butler and his co-defendant, Ingram, came up behind the prosecuting witness and took hold of him, Ingram holding him while the defendant Butler cut open the pocket of the prosecuting witness with a knife and took his pocketbook which contained $ 37 in money; that the prosecuting witness cried out that he was being robbed, and the defendants ran away, followed by the prosecuting witness and a large number of the men who had been sitting along the sidewalk with the prosecuting witness; that the defendants were overtaken within two or three blocks and were caught on the second floor of a building at the head of a stairway, where there was located a public closet; that they brought the defendant down to the sidewalk and someone telephoned for the police. An officer came and found the defendants in charge of some of the by-standers, who told the officer that they had caught them at the head of the steps; that the officer then went up to the place where the defendants had been caught and found just inside the door of the closet the pocketbook containing $ 37; that the prosecuting witness in the presence of the officer identified the pocketbook and money as belonging to him and also identified the defendants as the men who had robbed him.

"Another witness was sitting in an automobile across from the place where the prosecuting witness was robbed; he testified that he saw two men come up behind the prosecuting witness and take hold of him; that he thought it was only a playful scuffle until he heard the prosecuting witness crying out that he was being robbed; that he saw the defendants run away, followed by the prosecuting witness and others; that the defendant Butler, then on trial, was one of the men he saw scuffling with the prosecuting witness.

"The defendant's evidence consisted of the testimony of the co-defendant, Ingram, and the defendant, Butler. Ingram testified that he did not know the defendant Butler, and that he had never seen him at any time until both of them were arrested on the street. The defendant testified...