The State v. Holmes

• Decision Date: 20 December 1926
• Docket Number: 27372
• Citation: 289 S.W. 904,316 Mo. 122
• Parties: The State v. Albert Holmes, Appellant
• Court: Missouri Supreme Court

289 S.W. 904

316 Mo. 122

The State v. Albert Holmes, Appellant

No. 27372

Supreme Court of Missouri

December 20, 1926

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

Affirmed.

J Francis O'Sullivan and Isadore Rich for appellant.

(1) The court erred in refusing to discharge the jury and continue the cause after numerous prejudicial answers and statements had been made by the witnesses, which answers and statements were so prejudicial in their nature that the mere sustaining of defendant's objections and their being stricken from the record did not suffice. (a) It was error to show the conviction of the co-defendant charged separately with the same offense. 16 C. J. 670, secs. 1341, 1342; State v Ross, 29 Mo. 32; State v. Sadowiski, 256 S.W. 755. (b) The court erred in permitting evidence and conclusions relating to the extra-judicial confession of the alleged accomplice separately charged with the same offense. State v. Frisby, 204 S.W. 4; State v. Forshee, 199 Mo. 145; State v. Schaeffer, 172 Mo. 235; State v. Kennedy, 154 Mo. 268; State v. Flanders, 118 Mo. 236; State v. Hilderbrand, 105 Mo. 318; State v. Beaucleigh, 92 Mo. 490; State v. McGraw, 87 Mo. 161; State v. Barnum, 82 Mo. 67; State v. Brennan, 164 Mo. 509; State v. Levy, 168 Mo. 521; State v. Hays, 249 S.W. 51. (2) The court erred in permitting the State's witness Demarea to testify over the objection and exception of the defendant, when his name did not appear as a witness on the indictment.

North T. Gentry, Attorney-General, and A. M. Meyer, Special Assistant Attorney-General, for respondent.

(1) The information is sufficient. It avers every element of the crime of robbery in the first degree and contains the necessary allegations classifying the crime. Sec. 3307, R. S. 1919; State v. Strada, 274 S.W. 34; State v. Affronti, 292 Mo. 53; State v. Dickens, 285 S.W. 447. (2) The evidence of the State was ample upon every phase of the crime. The assault and the asportation, with their incidents, were established by two eyewitnesses; the defendant was positively identified by both witnesses, both at the police station and at the trial. This identification was corroborated by the card taken from the defendant at the time of his arrest, bearing the address and telephone number of the prosecuting witness and the address and telephone number of the apartment house to which prosecuting witness and her husband were lured and robbed; and by the evidence of the witness Demarea and the police officers showing that defendant disposed of some of the stolen property to witness and others. State v. Van Valkenburgh, 285 S.W. 979. (3) Whether a witness, whose name was not indorsed upon the information before trial, shall be permitted to testify, is discretionary with the trial court, and under the circumstances its ruling in the premises will not be disturbed. State v. Roy, 83 Mo. 268; State v. Grady, 84 Mo. 220; State v. O'Day, 89 Mo. 559; State v. Steifel, 106 Mo. 129; State v. Nettles, 153 Mo. 469; State v. Henderson, 186 Mo. 482; State v. Barrington, 198 Mo. 66; State v. Myers, 198 Mo. 243; State v. Lawson, 239 Mo. 594. (4) Alleged prejudicial statements by State's witnesses consisted of a statement by the witness Pugh. In detailing the circumstances of the robbery he mentioned defendant and "Kaplan," and in answer to the question, Who is Kaplan? said "He is in the pen now." Upon objection of defendant, the court instructed the jury to disregard the answer. There is no showing that the witness's error was born of anything save misunderstanding. The judgment should not be reversed on this ground. State v. Jackson, 267 S.W. 857; State v. Murphy, 292 Mo. 295.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On May 1, 1925, a verified information was filed in the Circuit Court of Jackson County, which, omitting formal matters, 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 Albert Holmes, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 28th day of February, 1925, at the County of Jackson, State of Missouri, with force and arms, in and upon one Ethel Pugh unlawfully and feloniously did make an assault, and one diamond ring, white gold setting, of the value of $ 500, one diamond ring (gold) of the value of $ 400, one diamond ring (gold) of the value of $ 275, one diamond ring (gold) of the value of $ 150, one black onyx ring of the value of $ 15, one gold wedding ring of the value of $ 10, twenty dollars in good and lawful money of the United States of the value of twenty dollars, of the aggregate value of thirteen hundred and seventy dollars, the money and personal property of the said Ethel Pugh, from the person and against the will of the said Ethel Pugh, then and there, by force and violence to the person of the said Ethel Pugh and by putting the said Ethel Pugh in fear of an immediate injury to his person, feloniously did rob, steal and carry away; against the peace and dignity of the State."

On May 2, 1925, defendant entered his plea of not guilty. On May 20, 1925, a trial was had before a jury, and the latter returned the following verdict:

"We, the jury, find the defendant Albert Holmes guilty of robbery in the first degree as charged in the information and assess his punishment at five years in the State Penitentiary."

Thereafter, defendant filed motions for a new trial and in arrest of judgment, both of which were overruled. On June 30, 1925, allocution was granted, judgment rendered, sentence pronounced in conformity with the verdict, and an appeal allowed defendant to this court.

The evidence of the State as shown by the record is substantially as follows:

Albert W. Pugh testified that he was in the hotel business at 1600 Jarboe Street, in Kansas City, on February 28, 1925, at the date of the alleged robbery; that while eating supper he recieved a telephone call to come to the apartments at 1223 Paseo, on which he had a lease; that he and his wife got in his car and drove to the above apartments; that two men and the porter were in the hall; that these two men were looking at the apartment for the supposed purpose of renting it; that he asked the porter why he didn't rent the apartment; that these men stated they wanted to change and rearrange some of the furnishing in the apartment, and would like to go up to the third floor and suggest what changes they desired made; that they went up on the third floor and looked at a vacant apartment, and defendant asked to see the kitchen. He asked Pugh to turn the light on so he could see, which Pugh did; that as Pugh turned around, defendant punched a gun in his stomach and told him to hold up his hands; that at the same time the other fellow drew the gun on his wife; that he was in plain view and could see what was done; that Kaplan -- the other man -- turned on the light in the main room; that defendant took from him $ 200 in money, a diamond ring, his watch chain and knife; that after defendant took the above things from Pugh, he went to the assistance of Kaplan who was getting the rings off his wife's fingers; that his wife was resisting, and defendant helped strip them off; that the robbers told Pugh and wife not to make any noise for fifteen minutes; that defendant then grabbed the pocket book off his wife's arm, broke the strap, took the money and valuable property from same and also took from his wife's little finger a black onyx ring which Kaplan had not gotten; that the robbers then barred Pugh and wife in the kitchen and left; that he (Pugh) broke the door open, hallooed as soon as he could and saw defendant and Kaplan run down the stairs, get in a car, which was running, and drive north on Twelfth Street; that the above apartment, No. 1223, is in Jackson County, Missouri; that he next saw defendant in the show-up room at Police Headquarters; that he identified defendant as one of the men who robbed him; that his wife received part of her stolen things back from Toyne, chief of detectives, at police headquarters.

Mrs. Ethel Pugh testified as a witness, and corroborated her husband, the preceding witness, as to the details of the robbery.

Edwin L. Kellerstraus testified for the State in substance as follows: That he was a police officer, and assigned to the detective department; that he and two other detectives, named Weaver and Phipps, arrested defendant with a companion in the Washington Hotel; that they found a coat which corresponded with the remainder of the suit worn by defendant at the time; that defendant put on this coat and wore it to the police station; that they found in defendant's room a card, which was introduced in evidence; that there was written on this card in long hand the address and telephone number of both the residence of witness Pugh and his apartment where the robbery occurred; that this card was taken from defendant's coat above mentioned, or from a grip or hand-bag found in defendant's room; that none of the above officers had a search warrant when defendant was arrested.

Frank Demarea testified, for the State, that defendant came to his restaurant at Fifth Street and Walnut and sold him a woman's diamond ring for $ 140; that defendant sold another diamond ring to a bystander. Both of these rings were later turned over to the police and restored to Mrs. Pugh, according to the testimony of the police officers.

The defendant was using a cane at the time of his visit to Demarea's restaurant, and Dr. O. F. Reiseman, a practicing physician, testified that at the instance of defendant, in February or March, he treated him for a sprained ankle.

The...