Appeal from St. Louis Circuit Court; Vital; down the steps was the man who held the W. Garesche, Judge. George De Priest, alias Brown, was convicted of robbery, and appeals. Affirmed. On October 6, 1919, the grand jury of the city of St. Louis, Mo., returned into the circuit court of said city, an indictment, charging that the defendant, George De Priest, alias Brown, on the 23d day of September, 1919, in the city of St. Louis aforesaid, did feloniously assault one John, B. McIntyre, and by force and violence to his person feloniously and violently did rob, steal, take, and carry away from the said McIntyre the sum of $30, lawful money of the United States, with the intent feloniously to deprive the owner of the use thereof, and to convert the same to his own use. On November 20, 1919, defendant was arraigned in the circuit court aforesaid and entered a plea of not guilty. On December 18, 1919, the trial of above cause was commenced before a jury. The scene of the alleged robbery was a large room, covering the entire upper floor, in the third story of a building, located at 7052 Pine street, in the heart of the business district of the city of St. Louis, Mo. The building fronts on the north side of Pine, and runs back to an alley in the rear, about 100 feet. The above room, at the time of the alleged robbery, was occupied by the Waiters' Club of St. Louis. There were several pool tables in it, as well as card tables. A bar was located at the west side of the room, and back of the bar there was a small room, where supplies were kept. There were two entrances to the Waiters' Club, one leading to the street and the other leading to the alley at the rear. gun while they were being robbed; that he is certain the man who held the gun was one of the two men who backed down the stairs; that he did not know what became of the third man; that the one who searched witness did not back down the stairway; that witness went to the window, and hollered to an officer below, "There goes two fellows that stuck up this club." He could not swear defendant was the man who had the gun. He had known defendant, for about two years before the trial, by the name of Brown. He further testified that he never knew him by the name of De Priest; that the man who held the gun had his hat pulled down over his face; that he could not swear defendant was in the club that evening; that he was not able to tell positively who the man was that held the gun. Witness was shown the testimony which he gave before the grand jury, and then said, after reading same, that he could not identify defendant as the man who had the gun. On cross-examination, witness testified that the man who searched him was not the defendant in this case; that the man with the gun resembled defendant, but he could not say it was defendant who had the gun; that as soon as witness ran to the window and hollered, the officer ran to the alley and started to shooting; that the two men had their backs to witness, and when the latter hollered the two men ran into the alley. Andrew Whalen, a night watchman, testified that on the morning of September 23, 1919, as he came to the corner of Seventh and Pine, he was accosted by Officer Schrievers, and requested to hold a man by the name of Conklin for him; that he did not see defendant that morning; that he heard two shots, but did not know who fired them; that The testimony on behalf of the state tends Schrievers had Conklin right in front of the to prove the following facts: John B. McIntyre testified, in substance, that he belonged to the Waiters' Union, and was a member of the Waiters' Club at 7052 Pine street; that he was at said club on the morning of September 23, 1919; that he was sitting in the bar end of said room on said morning, at the card table, and was held up; that about 2 o'clock a. m. on the morning of September 23, 1919, there were some thirty or forty men in the club playing cards; that three men entered the club, one of whom was holding a gun, and he commanded the members of the club to put up their hands; that he (witness) paid no attention to the man with the gun, but was watching the fellow doing the searching; that the latter just took what witness had; that all the men in the room were lined up, except six or seven, in the back room; that they took from witness between $30 and $35, of lawful money of the United States; that two of these men, after they got through, backed down the stairs; that one of those who backed Waiters' Club, when witness came up; that Schrievers went north on Seventh street. On cross-examination, witness testified that it was about 3 o'clock in the morning when he was left in charge of Conklin. Charles F. Conklin testified, in substance, that he was manager of a billard hall; that on the morning of September 23, 1919, he saw defendant at Ninth and Pine; that they were at the Maryland Drug Store; that he was at the Waiters' Club on above morning, and met Dick Lambert there; that he had known defendant about one year or a year and a half; that he talked with defendant at above drug store, and the latter then went east on Pine street in the direction of the Waiters' Club; that he and Schrievers were talking one door west of the Waiters' Club, when two men came out of the latter; that he got a glimpse of them; that they were going west on Pine street, and were right in front of witness; that he heard some one call from the Waiters' Club, and they said, "Stop those fellows! They just (232 S.W.) loaded revolvers under the bed where defendant was sleeping; that defendant told witness his big friend, Schrievers, shot at him; that witness asked defendant who was with him, and defendant said he was by himself; that witness then asked him who it was that did the searching, and he answered, "I don't know, I guess it must have been some fellow I picked out of the crowd." On cross-examination, witness testified that defendant did not say directly that he did the holding up. held us up," or "stuck us up"; that he heard | 23d of September, 1919; that he found two the call from the club, after he had gotten a glimpse of these two men and they had passed on west; that Officer Schrievers called his attention to Brown; that defendant had been drinking the night before; that he did not recognize either of the two men who passed while he was west of the Waiters' Club; that Schrievers said, as these two men passed, "There goes One-Eye now;" that defendant was called "One-Eye," or Brown; that Schrievers said it was Brown, but witness just got a glimpse of him; that when Schrievers called attention to "One-Eye," whom he knew to be Brown, he looked over his shoulder and saw Brown. Thomas Lewis, manager of the Waiters' Club, testified, in substance, that he did not see the man with a gun, but saw the searchers; that he did not know defendant. Charles Schrievers, a member of the police force, testified, in substance, that he was night watchman on the morning of September 23, 1919; that he was searching Conklin just west of the Waiters' Club on above morning, when defendant, known as Brown, came out of the Waiters' Club entrance; that he said to Conklin, "There goes your friend, Brown," and Conklin answered, "Yes;" that they went into the alley, and got about halfway in when McIntyre called out of the window to witness, or somebody standing on the sidewalk, "Get those two fellows! just stuck up the place;" that witness started out after them into the alley, and they were waiting to see if he was coming; that just as he started in they ran through the alley to Seventh street, and witness fired two shots; that he was sure defendant, George De Priest, alias Brown, was one of the two men; that he had known Brown for some time, and was not mistaken about defendant being one of them. On cross-examination, witness said he saw defendant and the other man come right out of the club hall; that only two men came out of the club at that time; that he (witness) fired three shots altogether. They T. George Dineen, detective sergeant, testified, in substance, that he had known defendant about five years; that he arrested defendant at 2905 Easton avenue, St. Louis, Mo.; that defendant was asleep when witness got there; that he found two loaded revolvers under defendant's bed; that defendant said to witness, "My big friend took several shots at me;" that he meant Schrievers, in speaking of his “big friend"; that he asked defendant who was with him, in speaking of the holdup, and defendant said he did not know who was with him; he might have taken somebody out of the club to do the searching; that he told defendant he was suspected of being in the holdup. Oscar L. Collard, a detective sergeant, testified, in substance, that he arrested defendant, George De Priest, alias Brown, on the At the conclusion of the testimony, defendant interposed a demurrer to the evidence, which was overruled. The court gave to the jury instructions 1, 1a, 2, 3, and 4. Defendant objected to each and all of said instructions, except No. 4, which was unobjected to by appellant. The instructions, and rulings of the court, as well as the argument of counsel, will be considered in the opinion. The jury returned into court the following verdict: "We, the jury in the above-entitled cause, find the defendant guilty of robbery in the first degree as charged in the indictment, and assess the punishment at imprisonment in the penitentiary for ten years. "George F. Eaton, Foreman." Appellant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled. On March 4, 1920, entered in accordance with the verdict aforedefendant was duly sentenced, and judgment said. Appellant in due time appealed the cause to this court. John P. Leahy, of St. Louis, for appellant. Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen. (R. W. Otto, of Union, of counsel), for the State. RAILEY, C. (after stating the facts as above). [1, 2] 1. Appellant contends that his demurrer to the evidence should have been sustained. We have made a very full statement of the facts, with the view of considering this question. It is not our province to pass upon the weight of the testimony, and hence we will only determine whether the record présents substantial evidence upon which the verdict can be sustained. It is clear that the prosecuting witness, John B. McIntyre, was robbed, in the city of St. Louis and state of Missouri, of $30 or more of lawful money of the United States, as charged in the indictment. While McIntyre did not recognize defendant as the man who held the pistol, yet he did say that defendant looked like the man who had the gun. He likewise testified positively that the man who held the gun on him, with one of the others engaged in the robbery, backed out of the club and down the stairs. Charles Schrievers, the policeman, testified, that he saw defendant and another man coming out of the Waiters' Club, and that he told Conklin, who was with him, that his friend Brown was passing by, and Conklin also recognized this defendant, who was known as "OneEye," or Brown, and who was then passing along Pine street, a short distance from the Waiters' Club entrance. Schrievers also testified that McIntyre called out of the clubhouse window and hollered: "Get those two fellows! They just stuck up the place." Schrievers is corroborated, as to above statement, by McIntyre and Conklin. Soon after the above hollering, by McIntyre, defendant and his companion started down the alley, were chased by Schrievers, and three shots fired after them, before defendant finally escaped. When appellant was aroused from his sleep by two policemen, he had two loaded pistols under his bed, and told them his big friend Schrievers had shot at him the night before. Collard, one of said policemen, then asked defendant who was with him, and he said he was by himself. Collard then asked him who it was that did the search ing, and he said, "I don't know; I guess it must have been some fellow I picked out of the crowd." The foregoing circumstances, in connection with other corroborating facts heretofore set out, were amply sufficient to warrant the jury in finding that defendant was the man who held the gun on McIntyre and others while they were being robbed. are therefore of the opinion that the trial court committed no error in overruling defendant's demurrer to the evidence. [3, 4] 2. Appellant asserts that: We "While the memory of a prosecuting witness may be refreshed by his testimony taken before the grand jury, it cannot be used for the purpose of impeaching him by the state." We are cited to State v. Patton, 255 Mo. loc. cit. 257, 164 S. W. 223, as an authority in support of above contention. We have no fault to find with the principles of law declared in the Patton Case, which were that he could not swear defendant was the man who had the gun. [5] 3. Appellant contends that his failure. to testify could not legally be referred to or criticized by the prosecuting attorney in the presence of the jury. In support of this assertion we are cited to State v. Graves, 95 Mo. 510, 8 S. W. 739, in which defendant testified as a witness in his own behalf. The prosecutor, in above case, commented on some matters which defendant might have testified about, but failed to do. This court, speaking through Chief Justice Norton, reversed the case on account of said comments. Judges Brace and Sherwood dissented. The Graves Case, relied on by appellant, was in express terms overruled in State v. Larkin and Harris, 250 Mo. loc. cit. 244, 245, 157 S. W. 600, 46 L. R. A. (N. S.) 13. Aside from its being overruled, it has no application here, because the defendant testified as a witness therein. The principle of law contended for by defendant is correct when applied to the facts of this case, as defendant was not on the witness stand. It will therefore be necessary to turn to the record, and ascertain what actually occurred, in passing upon above complaint. [6] The prosecuting attorney was reviewing the evidence relating to the identity of defendant, alias Brown, as the man who held the gun while McIntyre and others were robbed. In considering the testimony of Policeman Schrievers, the prosecutor said: "Now, he had all that opportunity to see this man Brown. Now, if Brown did not do anything, and you must say that Brown was there; that is the only testimony you have here; he witness here who says he was not there." must have been there; there hasn't been a The foregoing was objected to as being a comment on defendant's failure to testify in the cause. We are of the opinion that the above remarks, complained of by appellant, did not constitute a comment on the failure of defendant to testify as a witness in the cause. State v. Fields, 234 Mo. loc. cit. 625. loc. cit. 440, 92 S. W. 706, 5 Ann. Cas. 976. 626, 138 S. W. 518; State v. Ruck, 194 Mq. loc. cit. 440, 92 S. W. 706, 5 Ann. Cas. 976. In State v. Fields, supra, 234 Mo. at pages 625, 626, 138 S. W. 520, we said: followed in the later case of State v. Riles, 274 Mo. loc. cit. 623, 624 (204 S. W. 1, 2). The testimony taken before the grand jury was not offered in evidence in this case, nor was any part of same stated to the jury. "In the closing argument to the jury the "The state has On the contrary, the testimony given by prosecuting attorney said: McIntyre before the grand jury, was sub-proved certain facts-has brought a large nummitted to him, with the request that he has not been controverted by the defendant's ber of witnesses before you whose testimony examine same. He was then asked, after witnesses.' This language was objected to by refreshing his memory, if he could identify counsel for defendant, for the reason that defendant as the man who held the gun, the defendant is not obliged to take the stand.' and he answered that he could not, but said The court thereupon admonished the prosecutthe man with the gun looked like defendant. ing attorney that he had no right to comment We are of the opinion that the trial court on the fact that the defendant did not take the was within the law in respect to foregoing stand. The defendant's counsel then excepted to the remark of the court. It is now contendmatter. In addition thereto no harm was ed by appellant that prejudicial error was com done defendant, as the witness, after ex-mitted in the remarks both of the prosecuting amining his testimony given before the grand attorney and of the court. As to the alleged jury, reiterated what he had previously said, | improper remarks of the prosecuting attorney, (232 S.W.) we are of the opinion that the language was not open to the construction that it was a comment on the failure of the defendant to testify. The words 'the defendant's witnesses' are not fairly susceptible of such an interpretation, nor is there anything in the record to indicate that they were so intended. We hold that the prosecuting attorney was within the bonds of legitimate argument, and that his conduct was not open to the objection made or deserving of admonition from the court." In State v. Ruck, 194 Mo. loc. cit. 440, 92 S. W. 706, 5 Ann. Cas. 976, the prosecuting attorney, in his argument to the jury, Appellant's counsel objected to above remarks on the ground that it was a comment on defendant's failure to testify as a witness. The court was not asked to rebuke counsel, but to discharge the jury. Mr. O'Brien, representing the state, in justification of his remark, said: "When Mr. Leahy mentioned the fact about his reputation, that gave me the right to talk about it. Up until that time I had no right to mention his reputation, and I could not say a word about his reputation until his reputation was put in issue by himself." "Lastly, it is insisted that error occurred in not rebuking the statements of the prosecuting attorney in his argument that 'crimes of this character are becoming too frequent,' and to the further statement as follows: "The character of this man is not an issue in this case. It couldn't have been put in by the state. say to you there is no evidence as to the character of this defendant, because Mr. Kimbrell didn't make that an issue in this case. If he had made that an issue in this case, and opened the doors, the testimony would have been before the jury. He tells you that this man is a law-abiding man, nothing against him, when he knew under the law we couldn't make that an issue. Isn't it a little bit singular that, after living here 12 or 15 years, he couldn't produce a witness to show that he was that kind of man.' Now, as to these observations of the prosecuting attorney, there is absolutely nothing in the first. He merely voiced a truism. It is lamentably true that criminal acts like the one under investigation are too common. State v. Emory, 79 Mo. 461; State v. Hopkirk, 84 Mo. loc. cit. 288. As to the remark in regard to the character of defendant as a law-abiding man, the prosecuting attorney correctly told the jury that no such issue had been tendered and the character of the defendant had not been shown, and the state could not have made it an issue in the first instance. On its face it shows that it was a legitimate reply to the unsupported assertion that defendant was a law-abiding man with nothing against his character. The prosecuting attorney very properly insisted there was no such evidence, and if defendant desired his good character to be considered as a part of his defense, he ought to have produced at least some one witness that he was that kind of a man. There is no merit in the contention unfounded statement that he was a law-abiding that there was error in rebutting defendant's citizen. into the argument, and complain if it was He had no right to inject that issue promptly met and refuted." [8] 5. It is insisted by defendant that the corpus delicti was not shown by the state in this case. There is no controversy over the fact that the prosecuting witness, on the morning of September 23, 1919, was held up at the point of a gun, and robbed, while in the Waiters' Club, of $30 in lawful money We have heretofore of the United States. shown, under proposition 1 of this opinion, in considering the demurrer to the evidence, that there is substantial testimony in the case tending to show that defendant was the man who held the gun while McIntyre andothers were being robbed. The foregoing State v. Schyhart, 199 S. W. loc. cit. 211, and cases cited. The trial court heard Mr. Leahy's argu-contention is without merit and overruled. ment, and as defendant's counsel did not deny having told the jury that defendant "comes here with the best of reputation," appellant is in no position to complain of said remarks. The trial court very properly refused to discharge the jury, as requested by defendant. The objection urged to prosecutor's remarks is disposed of, adversely to appellant's contention, in State v. Hyland, 144 Mo. loc. cit. 313, 314, 46 S. W. 198, where we said: 6. We have examined the instructions given in the case, and find that they are fair to defendant, and properly covered all the law necessary to aid the jury in passing upon the case. 8. Upon a careful consideration of the law and facts relating to this case, we find ne error of which appellant can legally com Answer puts matter in petition in issue, and sets up title by adverse possession. The substantial facts are: That in December, 1882, said Albin Morgner, being the owner of the real estate in question, and a number of other tracts of land in said county, by two deeds dated December 8, 1882, and recorded same month, conveyed said property to Kossuth Morgner, his son. The deeds were apparently absolute warranty deeds on (Supreme Court of Missouri, Division No. 1. their face, indicating no trust whatever. June 6, 1921.) 1. Vendor and purchaser 230(1)—Grantees bound by recitals in chain of title. Recitals as to the property conveyed being conveyed in trust, contained in deeds in defendants' chain of title, are binding on them. 2. Limitation of actions 102 (1)-Statute did not run against cestuis where trust recognized by trustee. Said Albin Morgner then went to Germany, from whence he came, and never returned.. He died March 26, 1900. Besides his son, said Albin Morgner had three daughters, Mrs. Adelhaide Huning, wife of defendant, August R. Huning, Amanda Windhorst and Pauline Phillips. Mrs. Windhorst had several children then living, and when this suit was brought had eleven children, two of whom Where letters of defendant and his wife, are plaintiffs and nine are defendants. Plainwho were sought to be held as trustees, show- tiffs Albin Morgner and Verna Morgner, ed that they had actual notice of the trust in and defendant Thekla Morgner Smith, are the favor of plaintiffs, and recognized it and held only children of said Kossuth Morgner. Said the property in subserviency thereto and not Stanley Phillips was the youngest of said adversely, limitations did not run against plain-grandchildren, and he was 24 years old when tiffs' rights. this suit was brought. By deed dated De3. Trusts 25(1)-Recitals in deeds held to cember 16, 1885, Kossuth Morgner and wife, show property conveyed in trust. In suit to establish a trust, held, that recitals in deeds in defendants' chain of title showed that the property in question was conveyed in trust, as that defendants were properly required to account and were properly di vested of the legal title. 4. Appeal and error 880 (2)-Appealing de- Appeal from Circuit Court, St. Charles Suit by Albin Morgner and others against August R. Huning and others. Judgment for plaintiffs, and the named defendant appeals. Affirmed. C. W. Wilson, of St. Charles, for appellant. B. H. Dyer, of St. Charles, and Nagel & Kirby and E. G. Curtis, all of St. Louis, for respondents. Emma, for the expressed consideration of $10,000, conveyed the property, or what had not been sold by him to others, to John C. Gmeiner of St. Louis. At the close of the description in this deed, the following re cital occurred: "All the above property lying and being in the city and county of St. Charles, and being the same property conveyed to Kossuth Morgner in trust for the grandchildren of Albin Morgner, December 8th, 1882." In all other respects, said deed appeared to be a standard warranty deed. September 28, 1885, said John C. Gmeiner, as first party, conveyed said property to Kossuth Morgner, as party of the second part, for Emma Morgner, party of the third part, reciting a consideration of $15,000, paid said first party by third party. Said conveyance was made to said second party, Kossuth Morgner, "in trust for the sole and separate use, benefit, enjoyment and behoof of said Emma Morgner, her heirs and assigns," free from the control of her husband. At the close of the description, the same recital was contained, as in the deed to said Gmeiner, to wit: "Being the same property conveyed to Kossuth Morgner, in trust for the grandchildren SMALL, C. I. Appeal from circuit court of Albin Morgner by said Albin Morgner tc of St. Charles county. Kossuth Morgner, December 8th, 1882." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |