*1 1921. 177 Vоl. State v. Brown. proceeding partakes and terminates
to vacate overruling judgment; nature of a final interlocutory nothing than more an motion to vacate is may mover obtain if relief, from which the order hy preserving exception ruling court’s and error, judg- appealing suing from the out writ error а confirming right of ment the award. As to the latter it is case, resorted to this horn-book our review, practice, law, express in the absence of an a statute,- only bring up judgment. writ of error will issue a final R. 231 [Sec. 1919; Mosman, 474; S. Iba v. Mo. Trendley Padgett 241 Co., 73; v. Trac. Mo. v. Illinois 106; Taylor, 205 Mo. v. 59 Smith, 122; Hodkins Mo. 132; Shaw v. 53 Mo. Cowhick Dinwiddie, Jackson, v. App. being judgment, Mo. legation There no final 514.] the al- petition for a writ of error addressed upon proceeding this re- court, and this a view “the order of circuit court” based, overruling the motion to vacate award “was a final judgment,” being order or founded on the is- fact, suance of the writ was unauthorized. It there- should, fore, be dismissed.
It is All so ordered. concur. THE STATE H. v. alias DE BROWN, PRIEST, JOHN
Appellant. Two,
Division November 1921. Robbery: SUFFICIENT EVIDENCE: Alibi: Tes- Identification. witness, timony positive, clear and that defendant held him of a dollars; gun defend- him of fifteen when with and robbed well; stopped him that he looted into his face and knew him he ant during going shop previous to а barber five certain had been there; years that he afterwards identified and often saw defendant him man who had robbed as the on the street arrested, man in court identified night; particular on the had robbed him who up the that, policeman called arrested after he had made had been police that a learned station SUPREME COURT OF MISSOURI, State v. Brown. particular prosecuting the said there witness had come complained dollars, that he had been robbed of fifteen that he then took defendant to said house witness’s *2 and said witness identified defendant as the man robbed who had him, sufficiently support guilty, is substantiаl fb a verdict of al- though testify very four at witnesses time defendant was place, attorney prosecuting at another and the made the police place robbery to the station named as the of the another place place. distance from the actual some peculiar 2. -: -: -: Substantial Evidence. It is the witnesses, province jury credibility of the to determine the of the believe, they compelled required to to nor the court are them, testimony tending- the for of four to believe witnesses true; province nor is the an alibi the defendant was establish for discrepancies tеstimony of reconcile minor in the court to the witnesses, support evidence to where there is substantial charge contained information. main City Appeal Louis Circuit from St. Court.—Hon. Ben- jamin Judge. Elene, J.
Affirmed. appellant. Henry
Thos. Rowe, Jr., J. Rowe for (1) testimony prosecuting conflict of the . Special Ben witness, OfficerGeо. Lawless, as alleged robbery, place of the the former’s know- identity ledge of the of defendant at the time of the robbery lapse of time same from until the arrest impeachment. (2) is latter, tantamount testimony impeached of has been witness who is no testimony at and cannot all, be considered when deter- mining question whether there is substantial evi- dence to sustain the verdict. State v. 199- Francis, Mo. (3) 671. The statement witness to Special prior Officer the arrest Lawless, of defendant, Twenty-third that he was robbed at and Franklin Avenue, prior days to several before the arrest of de- walking fendant when he sаw the latter on the street Eighteenth near and Franklin Avenue, he had never be- fore seen the defendant, is so inconsistent with and eon- 1921. 179 OCTOBEE TEEM, Yol. v. State Brown. utterly destroy
trary trial as to his beyond peradventure credibility demonstrate prejudice. passion, bias and was the result the verdict Attorney-General, J. Barrett, Smith, Robert Jesse W. Attorney-General, respondent. for Assistant go case The evidence sufficient stand. State Underwood, and the verdict should v. 498; 272 Mo. Mo. State v. 685; Bowman, 263 State v. Maggard, 420; 250 Mo. Coñcelia, 250 Mo. State v. 340; Taylor, 228 228; 261 v. Eumfelt, v. State Mo. State Mo. Sharp, 234 Mo. v. Mo. 452; ¡'State Fields, State v. 1920, the Assistant March RAILEY, C. On *3 City Attorney Louis, of Missouri, filed, Circuit St. city, his verified information, in the circuit court of said charging H. De Brown, that alias Priest, therein John City Louis aforesaid, on December at St. Ben 27, 1919, feloniously and assault on Levin rob did make an him of etc. $15, plea formally arraigned, entered a
Defendant was April guilty, on and, of not 27, was tried before a guilty returned as a verdict of was follows: 1920, jury, cause, entitled find the “We, in the above degree charged robbery guilty in first defendant imp punishment at information and assess penitentiary years.” in five risonment a cutter for witness, Levin, Ben Meyer Company, at 9th & Cloth & Suit the Crawford Washington in Louis, testified, St. Avenue, substance, p. 8:45 he m., was оn December about that city; walking 3200 Locust said to his home at Street stopped got the defendant Locust, that when he alley; go into 'the that ordered him him there, appellant just walking or near was with be- some one told Levin raise occurred; fore this that defendant emptied appellant that then still; hands and stand MISSOURI, OF SUPREME COURT State v. Brown' pockets money; took therefrom Levin, gun pointed that defendant á had toward money, straight after he had taken his told him to walk alley. stay in ahead and to Levin that testified, he good got look identified that him; at he had couple seen Brown before had known his for a name years; that a few weeks he later, defendant on saw the walking him street, and had that arrested; ne saw Brown Avenue,
on and Franklin 18th and identified him as the man who he him; robbed seen frequently shop at a barber at 1500 Franklin Avenue; reported robbery that he but Officer did not Wells, at that tell time, name; he had seen defendant’s many shop. Brown at times Leo’s barber Gteorge Lawless J. substance, was special police officer, and assisted the arrest of Brown eight February p. about o’clock m. 17th, at 1813 Franklin near 905 Avenue, was Nortn 15th Street, appellant present where said he lived; that he was first Brown saw after that Levin arrest; when.Levin pistol identified defendant as the man who held the the time he robbed; that Levin had told witness being about robbed at 23rd Avenue; and Franklin when Brown was arrested, said was a mistake, anything he did it; know about that defendant re- quested witness take him out house; to Levin’s they when there, reached identified give Levin; that Levin did not defendant’s name in his police station. *4 Appellant in substance, that- was he some- times called De Priest, because his mother had been married twice; that name is Brown; John H. he never used name of De Priest as an to de- alias anybody, anything; ceive hide that he did on not, night of December 27, 1919, hold Levin and take money from on Street; 29th and Locust night; was at Wiehe Furniture Store he place arrived at the last close named to 7:30 o’clock, maybe a or a after; little"before little he remained (cid:127) Yol. y. Brown. State there that he did between 10:30; leave there until being at he remembered thе Wiehe 10:30; that 7:30 and of December be- on the Furniture Store deposited day got it; $175, a check that he cause deposit; part it that was bank hook shows a that his money; Doring that he and Mr. of his insurance $265.50 store; said about the check 'while talked showing deposit book his bank he exhibited question: attorney this His thеn asked that time. any you convicted crime Have ever been sir; “Q. ’ A. never was.” No,
or offense? in evidence, bank book was offered Defendant’s entry. showing above following
On cross-examination occurred: say you never convicted of You been
“Q. A. No, crime? sir. H. isn’t it? A. Brown, name is
“Q. Your John sir. Yes, you De Priеst? also as alias And are known
“Q. yes, A. I have been; sir. Booby you you Brown, And are also known as Booby
“Q. you plead didn’t are referred guilty May this court, Division No. 6, 1912, year you of assault to weren’t sentenced to one kill, and city pleaded malicious in the A. I as- workhouse? ... sault, plead guilty you
“By were Me. Reedеb : You Q. year city weren’t workhouse, sentenced one you? kill. Yes, A. for assault to sir, April 10, 1911, that, this
“Q. And on before plead exhibiting guilty you dan- courtroom, didn’t gerous weapon, you deadly sentenced and weren’t days fifty A. the dates? the workhouse? What are ‘£ right. April A. think that Q. I 10,1911. you by saying you never
<£Q. do mean What were convicted of a A. that. crime? I misunderstood you? You did
“Q. record, didn’t think I had the thought thought anything A. that, like I I never *5 182 SUPLEME COUET OF MISSOUEI, v. Brown.
State any robbery, answering, is about theft that what I was say. I didn’t need to no.” playing
He said was cards with other men at the night Wiehe on Store, Furniture 27, December that 'he 1919; could not remember other when he dates playing store; was cards above remembers shortly date, because was after Christmas. Doring, Edgar Eric Allison, Edward H. Eife Harry each Fox, substance, that he was at Wiehe Furniture Store of December 1919; defendant Brown was there from 7:30 to 10:30 night, parties o’clock playing and the above were balancing cards; that Eife books. was Allison years. known Brown about six Eife had known him years, eight about fifteen Fox had known him about years. or nine foregoing substantially testimony
The all the covers rulings in the case. The instructions and of the court necessary, opinion. will be as considered, far in due time, filed his motion for a duly being new trial, overruled. After sen- conformity grant- tenced in to the verdict, appeal ed an to this court. single assignment presented
I. A is error appellant’s discussed brief, which reads as follows: enough “The is not evidence substantial to sustain the verdict.” may
It be that, conceded unless record contains tending guilt, substantial evidence to show defendant’s duty plain it becomes our to reverse the case and dis charge custody. Kelsay, him from v. [State S. W. (Mo.) l. c. 756, and cases cited.] very
We made a full statement of the facts only necessary and it be heretofore, will refer same requires. as occasion of Ben wit- positive р.
ness, clear and that about 8:45 m. on City December 27, point St. gun, Louis, Missouri, him at the held Vol. n v. Brown.
State *6 that soon him He of as as $15. robbed and stopped in Brown’s and face, he looked him, defendant going him been to Leo’s he barber that had well; knew during years, the last five shop Avenue Franklin at many there that times; Brown seen defendant and had straight robbery immediately to the he went the after reported Dayton report that he did not it; and Police Station robbery occurring at 23rd and Franklin as the robbery, Avenue; the after that he identified defendant pistol money; took his that and man held the the who as brought recognized when the lаtter was he recognized that he officer; the of witness the house man as the who case, Brown at the trial of the night 27, of December robbed him on the special police George testified Lawless, officer, J. a February arresting he assisted present Levin first defend- was when saw that he 1919; ant Levin then identified Brown the arrest; after robbery; pistol the of the at time the at the man who held (witness) called the arrest of that after Franklin is located, 9th where 23rd and district, robbery made, been and find out if of night in there on the Levin come ninth district said, complained being robbed of at of of the 27th and Avenue. and Franklin 23rd
Therеupon demurrer and no to the rested, the State interposed. evidence was
Doring, Rife and Fox each testified de- Allison, them at the store of Wiehe Furni- fendant was with night 1919; that he December was ture Co. on night. from to 10:30 o’clock with them 7:30 The defendant denied robbed alleged with his friends that he was store Company on the above date. Furniture Levin not material issue as It was whether Franklin or on 23rd robbed on Locust Street, was credibility. except in as it affected his so far Avenue, right, jurors may concluded Levin regard place testimony wrong, in other and the SUPREME COURT OP MISSOURI, State v. Brown. robbery. They determining were more interested in np point gun, defendant held Levin at whether in of a city St. Louis, Missouri, robbed jurors on the of December $15, 27, 1919. The may have concluded that on the last named date the robbery five sun set before and that o’clock, occurred before defendant went to the furniture if he store, night. jurors there that heard these friends оf testify appellant’s presence defendant that as to at the store night, p. may 7:30 10:30 m., be.tween have believed their to be true. The may have believed that Levin was mistaken place yet where he claimed have been robbed, *7 may have been satisfied from the evidence that defend- city, ant robbed him of the in said on above date. appellant’s None of witnesses testified toas defendant’s previous opinion character. We of the are that there jury, substantial tending evidence before the guily charged show that defendant was as in in- the formation. peculiar province pass upon
It was jury the of the present the facts. The witnesses were in court where jury testify, the and .trial court could hear them weight given testimony. determine what should their be nothing There is jury record indicate that the by passion prejudice. was actuated either or On the appears other hand, from record impartial jury. received fair and trial before the judge who tried this had the case witnesses before him, testify. and heard them He overruled defendant’s motion doing necessarily for a new trial so and, held that was convicted on substantial evidence. On the record justi- before do not us, we feеl that this court would be reversing-the remanding fied in case it for a new trial. assignment accordingly The above of error is over- ruled. Only assignment presented
II. of one error is appellant’s disposed pre been brief, has of ceding proposition, but as the motion for a new trial Yol.
Marston v. Catterlin. сomplains carefully alleged other we errors, examined the briefs of record, counsel, well as with as passing on same. We are
the view of good; that the information is of that the opinion Other Assignments. given by the court instructions necessary properly fairly declare the law pass intelligently the issues in the all during court case; that no was committed error legally progress trial of which defendant can complain; legally that the defendant has been con upon im substantial evidence after fair and victed partial trial. accordingly judgment of the trial court is af-
firmed. Reeves, White and concur. CC., opinion foregoing PER CURIAM :(cid:127) —-The Railey, adopted opinion hereby All of C., is the court. judges concur. EDWIN W. Plaintiff in Error, v. MARSTON, LUCH Administratrix of
CATTERLIN, Estate JOHN M. CATTERLIN. *8 Two,
Division November County: Prayer Compulsory 1. ACCOUNTING: Land Another in. Conveyance. plaintiff brought Where suit to set aside a sale under conveying deed of trust and to cancel a trustee’s deеd to de- county brought, pend- fendant land the suit is ing suit, pendens, conveyed without of lis notice exchange land, receiving county, part payment in another land adjudged that, circumstances, plain- and the court under such accounting, entitled, by an from defend- tiff is suit for to recover conveyed by trustee, thе of the land so to him ant value compelled,' an account- cannot in the suit for said ing, be county convey in the other so received land jurisdiction exchange, not have territorial for the court does power, prayer conveyance; compel under the but the court has such