State v. Hendy

BUEGESS, J. Defendant and one James Drummond were jointly indicted in the circuit court of St. Louis county for robbery in the first degree. He was afterwards awarded a separate trial, and was on the twentieth day of April, 1898, put upon his trial in said court, convicted of the offense with which he was charged and his punishment fixed at five years imprisonment in the penitentiary. He appeals. The robbery was committed between five o’clock and rundown on the evening of September 26, 1891, the victim being Mrs. Eose Pavelec. On that evening she, her husband, father and two other persons went to a place called Horn’s Grove, in St. Louis county, a short distance outside of the city limits of the city of St. Louis, where they remained a short time, and about the time they were ready to start home the defendant and Drummond came upon tliem with revolvers in their hands, presented one of them to the head of Mrs. Pavelec, threatened to shoot her, and at the same time took from the bosom of her dress against her will .her purse containing $5.50. [303] Tbe defendant was afterwards identified by ber, arrested and convicted. Tbis first point raised upon tbis appeal is witb respect to tbe identification of tbe defendant as one. of tbe persons, wbo committed tbe robbery, defendant’s contention being that tbe evidence was not sufficient for that purpose. "We can not however concur in tbis view. There was at least some evidence tending strongly to show that defendant was one of tbe robbers, and its weight was for tbe consideration, of tbe jury. .They found that tbe identification was sufficient, and their verdict will not be interfered witb by tbis court upon that ground. Tbe sixth instruction given by tbe court to tbe effect that tbe jury might disregard tbe testimony of any witness wbo, in their opinion, bad willfully sworn falsely to any material fact, is criticised upon tbe ground of tbe want of some fact or facts upon which to predicate it. Tbis instruction is copied into tbe bill of exceptions, and made part of tbe record, but all other instructions that were given are omitted therefrom, and without tbe entire record before us,, we can not say that tbe court committed error in giving tbis instruction. [Greenabaum v. Millsaps, 77 Mo. 474; Birney v. Sharp, 78 Mo. 73; Evans-Snyder Buell Co. v. Turner, 143 Mo. 638.] Moreover, tbe evidence was we think sufficiently contradictory to justify tbe instruction. Finding no reversible error in tbe record, we affirm the-judgment, GaNtt, P. J., and Shekwood, J., concur.