The State v. Ingram

• Decision Date: 20 December 1926
• Docket Number: 27439
• Citation: The State v. Ingram, 289 S.W. 637, 316 Mo. 268 (Mo. 1926)
• Parties: The State v. John D. Ingram, Appellant
• Court: Missouri Supreme Court

289 S.W. 637

316 Mo. 268

The State v. John D. Ingram, Appellant

No. 27439

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.

(1) The information does not charge that defendant did make an assault. Sec. 3908, R. S. 1919; 31 C. J. 657, sec. 177; State v. Fairlamb, 121 Mo. 137. (2) The information does not charge a taking. Sec. 3307, R. S. 1919; 36 C. J 812, sec. 265; State v. Copeman, 186 Mo. 108. (3) The court erred in refusing to disqualify certain jurors, who were qualified the day previous to try George Butler, jointly charged with defendant in the robbery and found guilty, and in refusing to disqualify other jurors who had talked with and heard some of the jurors who had convicted Butler, repeat the result of the trial of Butler. 35 C. J. 325, sec. 343; Hunt v. City of Columbia, 122 Mo.App. 31; People v. Mol, 137 Mich. 692; Kliendienst v. United States, 48 App. (D. C.) 190; McKay v. State, 6 Ga.App. 527; Jacobs v. State, 1 Ga.App. 519; State v. Maloney, 118 Mo. 112; State v. Matthews, 98 Mo. 119. (4) The court erred in refusing to permit defendant to ask the prosecuting witness questions. Secs. 1154, 3957, R. S. 1919; 6 C. J. 673, sec. 185. (5) The court erred in sustaining State's objection to questions asked prosecuting witness as to his acquaintance with interpreter. Le Toon v. Terr., 16 Hawaii 351; Schnier v. People, 23 Ill. 17. (6) The evidence was insufficient to support the verdict. State v. Young, 237 Mo. 170.

North T. Gentry, Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.

(1) The indictment is in a form approved in many cases. State v. Tony Strada, 274 S.W. 34; State v. Baldwin, 281 S.W. 940; State v. Deviney, 278 S.W. 728. (2) There was substantial evidence of defendant's guilt. State v. Concelia, 250 Mo. 424; State v. Field, 262 Mo. 164; State v. Renfro, 279 S.W. 704. (3) The defendant had an attorney who will be presumed to be competent and able to look after all the details of the trial. 8 R. C. L. sec. 39; State v. McCall, 39 Am. Dec. 316. (4) The question as to the qualifications of a juror is to be determined by the court, and the finding of the trial court will not be disturbed unless it appears that manifest error has been committed. State v. Cunningham, 100 Mo. 388; State v. Williamson, 106 Mo. 169.

OPINION

Blair, J.

Appellant was convicted of robbery in the first degree, was sentenced to imprisonment in the penitentiary for five years, in accordance with the verdict of the jury, and has appealed. This is a companion case of State v. George Butler, ante page 264, this day decided. Reference is made to the opinion in that case for facts not stated herein.

The evidence offered by the State tended to prove that, on September 7, 1925, at Kansas City, in Jackson County, two men came up behind an Italian named Joe Fotivez, who was sitting on the curb, seized him and held him, slashed his pocket with a knife, and fled with his pocketbook containing about thirty dollars in United States money.

There were forty or fifty other men sitting around nearby, who were passing the noon hour in smoking and talking. No one seemed to realize that Fortivez was being robbed until the robbers started to run away. The robbers were pursued for two or three blocks. At Eighth and Delaware streets appellant and George Butler were captured. The testimony offered by the State's witnesses is that these men had run up a stairway in an office building at that corner and had been apprehended at the top of the stairs. They were afterwards brought down to the street. An officer went up the stairway, where appellant and the other robber were overtaken, and in a closet there found a pocketbook containing thirty dollars in money and a receipt for five dollars, all of which Fortivez identified and claimed as his own.

Appellant and Butler were charged jointly with the crime of robbery. After a severance, Butler was tried and convicted on the day before appellant was tried. Appellant was positively identified as one of the robbers. The place at the counsel table where "the robber" sat was designated by the witnesses without calling him "the defendant," and this is urged as insufficient identification of the appellant. We will assume that, if the witnesses had pointed out as the robber some one at the table other than the defendant then on trial, the trial judge and the jury would have known it. However, at a later place in the record it appears that appellant's counsel referred to the appellant as the man sitting in the place at the counsel table designated by the witnesses as the place where "the robber" sat.

As a witness appellant denied that he robbed Fortivez. He said he was not at Sixth and Main, where the robbery occurred, and placed himself two blocks away, near where he was arrested, at the time the robbery occurred. He said he never had seen Butler until he was apprehended at the same place where he was taken by what he termed the "mob." He had stepped aside to allow the mob to pass and never dreamed the mob was after him until he was captured. Appellant testified that he had suffered a severe fracture of his leg, and limped badly, and could not run fast like the robbers were said to have run. Witnesses for the State described one of the robbers as limping while he ran away. The prison physician who had examined appellant testified to a past leg fracture and complete union of the bones, and said that, while one leg was shorter than the other, appellant could run fast for a short distance.

A police officer testified that, after their arrest, appellant and Butler stated that they had come to Kansas City together four or five days before and had "bummed" their way there. This statement was denied by appellant. He then called Butler as a witness and he also denied the conversation. Butler was then shown to have been convicted for the same robbery upon his separate trial.

The information is assailed as insufficient and as charging no crime. It was set out in full and approved in the companion case, State v. Butler. What we there said concerning its sufficiency is equally applicable here.

Error is assigned because the court refused to sustain appellant's challenge to several members of the regular jury panel who had qualified as members of the panel of thirty jurors in the Butler case the day before, but who had not been chosen as members of that trial panel. They had heard the questions asked by counsel in qualifying a panel, and had been told what the case was about, and knew that appellant and Butler had been charged jointly. It was not shown that any of them had heard any of the testimony in the Butler case. Two or three of them had learned the result of the Butler trial from some one of the jurors on the trial panel. All of the challenged jurors stated that they had no opinion in the case then on trial and, if selected as members of the trial panel, they would try the case on the evidence and under the instructions of the court without regard to anything they had learned concerning the...