The State v. Kowertz

• Decision Date: 23 June 1927
• Docket Number: 27905
• Citation: 297 S.W. 358,317 Mo. 426
• Parties: The State v. Eulos Kowertz, Appellant
• Court: Missouri Supreme Court

297 S.W. 358

317 Mo. 426

The State v. Eulos Kowertz, Appellant

No. 27905

Supreme Court of Missouri

June 23, 1927

Motion for Rehearing Denied July 13, 1927.

Appeal from Jackson Circuit Court; Hon. E. E. Porterfield Judge.

Affirmed.

James H. Anderson, Wofford E. Lewis and Bert S Kimbrell for appellant.

(1) The Honorable E. E. Porterfield, Judge of Division 7 of the Circuit Court of Jackson County, did not have jurisdiction to try the case, for these reasons: (a) The regular judge of Division 5 of the circuit court, designated under the rules of said court as criminal Division A during the November term, 1925, for the trial of criminal cases, was not divested of jurisdiction to try the case. Autenrieth v Railroad, 271 Mo. 248; Ladd v. Forsee, 163 Mo. 506; Bank v. Graham, 147 Mo. 250. (b) The Honorable Allen C. Southern, Judge of Division 5 of the circuit court, had exclusive jurisdiction of the case. Haehl v. Wabash Railroad Co., 119 Mo. 337; State ex rel. Chandler v. Allen, 235 Mo. 303; Laws 1921, sec. 7, p. 221. (c) The record shows that the Honorable Allen C. Southern was in no way disqualified from trying the case. Cases supra. (d) The record shows no statutory disqualification or disability upon the part of the Honorable Allen C. Southern to try the case. Cases supra. (e) The record does not show or recite the reason of the disqualification of the Honorable Allen C. Southern to try the case. Sec. 2448, R. S. 1919. (f) The record does not show or recite the reason for calling in the Honorable E. E. Porterfield to try the case. Section 2448. (g) The Honorable E. E. Porterfield did not acquire jurisdiction to try the case. Cases supra. (h) Upon the record, presumptions cannot be invoked to uphold the jurisdiction of Judge Porterfield. (2) The court erred in overruling the demurrer of defendant at the conclusion of all the evidence in the case, for these reasons: (a) The offense shown by the evidence was the offense of assault with intent to rob, or the offense of grand larceny. (b) The evidence does not show the consummated offense of robbery. (c) The evidence does not show that the defendant in person took the money mentioned in evidence, or any part thereof. (d) The evidence does not show concert of action between the "other man," or the "second man," and the defendant in the taking of the money mentioned in evidence, or any part thereof. State v. Johnson, 111 Mo. 578; State v. Massey, 274 Mo. 578; State v. Lasson, 292 Mo. 155; State v. Friedman, 280 S.W. 1023. (3) The court erred in giving upon behalf of the State Instruction 1, for the reason that there is no evidence that the defendant in person took stole, and carried away any money of W. A. Greenwell. Cases last above.

North T. Gentry, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.

(1) Sections 2450, 2451 and 2452, Revised Statutes 1919, and the rules of the Jackson County Circuit Court made in pursuance thereof, must be looked to in determining the question whether or not the trial judge had jurisdiction of this cause. (a) The several judges of the Circuit Court of Jackson County are elected as circuit judges of that court -- not as circuit judges of specific divisions thereof. State ex rel. v. Allen, 235 Mo. 305. (b) The creation of the various divisions is merely for the purpose of expediting the work of the court, but whether a cause be heard in one division or in another, the forum is the same. State ex rel. v. Allen, 235 Mo. 305. (c) In recognition of this fact, the statute provides that when any such judge is not occupied with the business assigned to him, he shall, as far as practicable, aid the other judges in discharge of their duties. Sec. 2452, R. S. 1919. (d) Judge Porterfield was called to preside over this cause in the absence of Judge Southern. It follows that Judge Porterfield had jurisdiction to hear this cause. State ex rel. v. Allen, 235 Mo. 305. For other cases applicable to the instant case, see State v. Johnson, 272 S.W. 931; Hargadine-McKittrick D. G. Co. v. Garesche, 227 S.W. 824; Johnston v. Ragan, 265 Mo. 443; Fox-Miller Grain Co. v. Stephans, 217 S.W. 994. (2) The person lawfully in possession of property taken in robbery is the "owner" within the meaning of the statute. State v. Craft, 299 Mo. 332; State v. Williams, 183 S.W. 308; State v. Carroll, 214 Mo. 392, 31 L. R. A. (N. S.) 311. (3) There was ample evidence introduced by the State to make a case for a jury to decide.

Henwood, C. Higbee and Davis, CC., concur.

OPINION

HENWOOD

The appellant was prosecuted and convicted in the Circuit Court of Jackson County, on a charge of first degree robbery. The jury assessed his punishment at imprisonment in the penitentiary for a term of seven years, and he was sentenced accordingly. In due time he appealed.

In all its essentials the State's case rests on the testimony of the prosecuting witness, W. A. Greenwell. The following material facts and circumstances are gathered from his testimony. On September 29, 1925, and for a short time before, Greenwell was the manager and in charge of one of the Piggly Wiggly Bird Company's chain of grocery stores located at or near the junction of Thirty-seventh Street and Benton Boulevard in Kansas City. The front entrance to the store was equipped with a turn-stile and extending through the store were several aisleways, one of which extended around the store room and back to the checking counter and to the way out through another turn-stile. On the morning of September 29, 1925, Greenwell opened the store "about a quarter after six." It was daylight, but all the lights in the store were burning. He put $ 47.60 in the cash register for change, leaving "about ten or fifteen cents" on his person, and had started "to dust or kind of clean up around" when the alleged robbery occurred. As to what happened we quote the witness, in part, as follows:

"Q. Go ahead? A. So I put the money in, and then we usually dust around. So I hadn't been there over fifteen minutes when this car drove up in front, dark roadster car, with two men in it, and one man got out and came in; he went around to a side entrance by the candy counter, where there is an entrance to a back room, and he inquired the way in; so I told him, and he took a can of apricots off the shelf and came on around and set it down on the checking counter, which I was standing behind, facing him, and he handed me a five-dollar bill, and when I stepped, turned around to ring this money up, when I opened the register he stepped around to one side and poked me and told me to stick them up, and I did.

"Q. What did he poke you with? A. A gun.

"Q. Did you see the gun? A. Yes, sir.

"Q. What kind of gun was it? A. It looked to be a small automatic.

"Q. The kind as to color? A. Dark gun.

"Q. A dark blue? A. I don't know whether it was blue. It was smoke color, steel or something like that.

"Q. Go ahead. A. He told me to come out from behind the counter. He took me to the back of the store, and as I was coming out the other fellow got out of the car and was coming in. He took me to the back and put me in the toilet and while he was doing this the other man came in and was taking the money from the register, and he also searched me while I was in the toilet.

"Q. Did he take anything from you? A. He didn't take anything from me. And he asked me if that was all I had and I told him yes. And he told me to stay in the toilet until he got away, and when I heard the turn-stile click I came out to the telephone and notified the cops, also my superintendent, and that was all."

He further testified that he examined the cash register after these men left and that $ 47.60 had been taken from the register. While on the stand he pointed out appellant in the courtroom and said he was positive that appellant was the man who used the gun on him. He also said that he had identified appellant at the police station "a week or two" after this occurrence, and that he was looking at four men "in the show-up room" at the time.

On cross-examination he said the men were in an open car with the top up and no curtains on, and that he could see the faces of the men; that he saw the second man get out of the car and saw him coming in the store as he was being taken toward the toilet by the man who held him up; that he observed the second man only a few seconds at a distance of twenty or twenty-five feet and could not identify him; and that the man who held him up wore a mustache.

On appellant's side the proof tends to establish an alibi, and also that appellant never wore a mustache.

Appellant took the stand and denied that he committed the alleged robbery and further said that he was not in Kansas City on September 29, 1925.

Tom McMullen testified that on Saturday evening, September 26, 1925, he and appellant left Kansas City on a Frisco train for Conway, Missouri, and that appellant's uncle, Charles Skinner, met the train at Conway the next morning and took them to his home on a farm near Conway, where they spent the day (Sunday, 27th); that the following day (Monday, 28th) Charles Skinner took them to the home of Harrison Skinner, another uncle of appellant, near Mack's Creek, Missouri, and that they attended a Baptist revival meeting in that vicinity that evening; that on the next day (Tuesday, 29th) they went to Linn Creek, Missouri, in search of work on the dam then under construction at that place; that they visited with appellant's uncles until the night of October 5th, when they were arrested by the sheriff at Conway on a charge involving the theft of an automobile at Kansas City; that the charge against him in connection with the automobile theft was dismissed.

Both of appellant's uncles, Charles and Harrison Skinner,...