| Mo. | Dec 22, 1925
Lead Opinion
On August 15, 1924, the Prosecuting Attorney of Greene County, filed in the criminal court of said county, an amended information, which, without caption, signature and jurat, reads as follows:
"H.T. Lincoln, Prosecuting Attorney within and for the County of Greene, in the State of Missouri, under his oath of office informs the court that Herman Hedgpeth, W.J. DeMombrom and Frank Carey, late of the county and state aforesaid, on the 16th day of July, A.D. 1924, at the County of Greene and State of Missouri, a certain building the property of E.M. Wilhoit Oil Company, a corporation organized and existing under the laws of the State of Missouri, and located on the northwest corner of State and South Campbell *466 streets in the city of Springfield, Greene County, Missouri, the same being a building in which goods, wares, merchandise and other valuable things were then and there kept and deposited, did then and there feloniously and burglariously break into and enter with intent the goods, wares, merchandise and other valuable things in said building, then and there being, feloniously and burglariously to steal, take and carry away, and one hundred and four dollars and thirty-two cents, good and lawful money of the United States, of the value of one hundred and four dollars and thirty-two cents, the property of the said E.M. Wilhoit Oil Company, a corporation, as aforesaid, in said building then and there being, then and there feloniously and burglariously did steal, take and carry away, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State."
On August 15, 1924, appellant filed a motion to quash the amended information, which was overruled, and thereafter on the same day defendant filed his motion for a continuance, which was likewise overruled. Thereafter, on the same day, defendant was formally arraigned and entered a plea of not guilty. On the same day, the jury, before whom the case was tried, returned into court the following verdict:
"We, the jury, find the defendant Frank Carey guilty of burglary and larceny in manner and form as charged in the information and assess his punishment at seven years in the penitentiary for the burglary and at five years in the penitentiary for the larceny."
Timely motions for a new trial and in arrest of judgment were filed and overruled. Thereafter judgment was rendered, sentence pronounced and an appeal granted defendant to this court.
E.M. Wilhoit testified, in substance, that he was president of the E.M. Wilhoit Oil Company of Missouri, which owned a filling station at State and Campbell streets, in Springfield, Greene County, Missouri; that on July 16, 1924, the station was burglarized, one of the rear *467 windows prized up and a safe had been broken open and the contents rifled.
O.W. Hulse, a police officer, testified, that he received a call about four A.M. on July 16, 1924, to go to the Wilhoit station; that officer Webb accompanied him, and they found the defendant standing in the door of the station; that a sledge hammer and a punch were lying on the floor of the station; that the outer door of the safe was open and an inner door of same was battered; that the safe contained no money; that he took an automatic pistol from the defendant, and later took from him a spring-back knife and about $27 in cash, including some paper rolls containing pennies and nickels; that defendant made no explanation as to the money taken, nor as to his presence there. On cross-examination, witness testified that defendant was standing in the open door of the station; that he walked toward the police car as it drove up and made no resistance; that the above occurred about day-break.
W.K. Webb, a policeman, testified that, on the morning of July 16, 1924, he was called to the E.M. Wilhoit filling station, with officer Hulse; that as they drove up to the station, which was dark at that time, they stopped and defendant came out to meet them; that one man ran, and witness ran after him; that he caught this man and his name was Herman Hedgpeth; that the above occurred about four o'clock in the morning, and it was dark.
F.M. DeArmond, a police officer at Springfield, testified that he knew Herman Hedgpeth and Billie DeMombrom; that about ten o'clock on the night of July 15, 1924, he saw them at Tony De Mates place on South Campbell Street; that he next saw them at the filling station the following morning about four o'clock, and they were then in a Ford roadster; that he arrested DeMombrom about twenty minutes after defendant was arrested; that $57 in cash was taken from Hedgpeth, but he had no wrapped money; that a little money was taken from DeMombrom. *468
Merrill Banning testified that he was twenty years old, and worked for the E.M. Wilhoit Oil Company by the day, and was so employed on the morning of July 16, 1924; that he was working at the station located at State and Campbell streets; that it was his duty to lock up the station; that about nine o'clock on the night of July 15, 1924, he locked up said station; that there was somewhere near $100 on hand, and he locked it up in the safe of the company; that he next saw the station about four-thirty the morning of July 16, 1924; that he stayed right across the street from the station and was awakened by hearing a shot; that he dressed and went to the station where he found the door open, and one of the windows open, which had been nailed down; that he saw the marks from prying the window; that he saw there a tire tool and a screw driver, lying on the outside below the window; that the safe had been hit with some instrument and the door of same was open; that all the money which he left in the safe the night before, except a check for $2.27, had been taken from the safe; that part of the nickels and pennies left in the safe were in the original wrappers, similar to those taken from defendant at the time of his arrest. These wrappers were secured from various banks.
Nelson Dickinson, an employee of the oil company, testified that the loss sustained was $104.32.
W.K. Webb was recalled, and testified that the money taken from Hedgpeth was all paper money which he had thrown down when pursued. He had some other money which he said was his own; that he was chased about three blocks from the above station; that the officer didn't know it was Hedgpeth when the chase started.
The evidence for defendant was as follows:
Mrs. Mary Bradley, who kept a rooming house at 408½ West Walnut, testified that defendant roomed at her house on July 15th and 16th, 1924; that she saw him about ten o'clock on the night of July 15th; that he paid his room rent on that occasion and had some money left; that DeMombrom paid his bill amounting to two dollars. *469
H.E. Wheelbarger, who operated a billiard hall in Springfield, testified that he loaned defendant $30 the evening before the burglary; that the money loaned him was in paper and silver, and included about four or five dollars of wrapped nickels, pennies and dimes; that wrapped money is used at the hall at all times; that he did not know how many rolls were given defendant.
Frank Carey, the defendant, testified, in substance, that he was arrested the morning of July 16, 1924, after he had crossed the street near the station; that his attention was called to the station and he saw two men running out of the door; that he had just stepped up to look in the door when the police arrived; that he turned and walked toward the car; that he had been playing poker the evening before, with the money he got from Wheelbarger; that he went to the game about 12:30 A.M. and was on his way home when arrested; that he made no resistance to his arrest; that the money taken from him was that borrowed from Wheelbarger; that he received the wrapped change from Wheelbarger; that he left the poker game about 3:30 A.M.; that he did not use any of the nickels or pennies in the game; that he carried a revolver because of threats, and in order to protect his life.
I. It is contended by appellant that the evidence is insufficient to sustain the verdict, and that his demurrer to the evidence at the conclusion of the case should have been sustained.
The evidence is set out very fully in the preceding statement and need not be repeated here. We are of the opinion that there was substantial evidence offered by the State, and that the jury was fully warranted in convicting him thereunder onSufficient that issue. [State v. Woodard, 273 S.W. l.c. 1050;Evidence. State v. Tipton,
II. The original information filed in the Criminal Court of Greene County failed to specifically describe the location of the building of the E.M. Wilhoit Oil Company, etc., andAmended charged therein that one watch of the value of twoInformation. dollars, the property of one Merrill Banning, was taken from said building.
The defendant waived a preliminary hearing before C.A. Hubbard, municipal judge and ex-officio justice of the peace, on July 17, 1924, and was bound over to appear in the Criminal Court of Greene County, Missouri, to answer said information. He appeared in the criminal court aforesaid and filed a motion to quash the above information, which was sustained. Thereupon the State was granted leave to file the amended information heretofore set out. It made no material change from the original information, and the court committed no error in permitting the same to be filed as amended. [Sec. 3853, R.S. 1919; State v. Smith, 267 S.W. l.c. 870; State v. Woodard, 273 S.W. l.c. 1049.]
The motion to quash the amended information is without merit and was properly overruled.
III. The prosecuting attorney was authorized to file the amended information in the Criminal Court of Greene County, without any affidavit, except the oath of the State's attorney attached thereto. [Sec. 3760, R.S. 1919; State v.Affidavit. Sykes, 285 Mo. l.c. 27,
IV. The defendant, having waived a preliminary examination as heretofore stated, was not entitled to any *471 further preliminary hearing after the filing of theWaiver of amended information, as there was no material changePreliminary in the charge against him. [State v. Woodard, 273Hearing. S.W. l.c. 1048-9, and cases cited.]
V. The information is sufficient as to both form and substance. [State v. Tipton, 271 S.W. l.c. 56; State v. Tracy, 243 S.W. l.c. 178; State v. Yandle, 166 Mo. l.c. 594; State v.Sufficient Sprague, 149 Mo. l.c. 411; Sec. 3305, R.S. 1919.]Information.
VI. Complaint is made in appellant's brief that, after the evidence was all in, counsel for the State made in part the following remarks: "Where no one sees the knife sunkArgument into a man's heart or sees him shot or sees theto Jury. building broken into, the court has to give stock instructions on circumstantial evidence."
Counsel for defendant said: "We object to the words `stock instructions.'" This objection was overruled by the court.
It is manifest that, if counsel for the State had used the words "usual" or "standard" instead of "stock," in discussing the instruction, no objection would have been interposed. The above complaint is without merit and overruled.
VII. The court is likewise charged with error, in overruling defendant's objection to the following argument of counsel for State: "He [defendant] made no explanation to theExplanation police there when he was arrested and there is noBy Defendant. explanation he can give."
Turning to the testimony of O.W. Hulse, we find that the following occurred in his examination by the State:
"Q. At the time of the arrest did Mr. Carey make to you any explanation where he got the money which *472 had been taken off of him or what he was doing in the E.M. Wilhoit Oil Station? A. None whatever."
This evidence went in without objection, and was the proper subject of comment by counsel for the State. Aside from the foregoing, we are at a loss to understand how appellant could have been legally injured by showing that he made no explanation to the policeman as to his presence that time of morning near the scene of the robbery. The trial court committed no error in respect to foregoing matter.
VIII. The information charged defendant with burglary and larceny in a single count. The verdict aforesaid found defendant guilty of both crimes, and separately assessed specific punishment for each offense, which was sufficient.Verdict. [Sec. 3305, R.S. 1919; State v. Rowe, 142 Mo. l.c. 441; State v. McCune, 209 Mo. l.c. 400-1; State v. Logan, 209 Mo. l.c. 402; State v. McHenry, 207 S.W. l.c. 808 and cases cited.]
IX. Appellant complains of some other statements made by counsel for the State in the argument of the case, but on consideration of same we find no grounds for granting a new trial.
While no special complaint is made in appellant's brief as to the instructions given, we have carefully considered the same, and find that they properly declare the law and fully informed the jurors as to all the law that was necessary for them to consider in passing upon the case.
We are of the opinion that defendant was legally convicted upon substantial evidence. The judgment below is accordingly affirmed.Higbee, C., concurs.
Addendum
The foregoing opinion of RAILEY, C., is adopted as the opinion of the court. All of the judges concur. *473