285 S.W. 445 (Mo. 1926), 26911, State v. Dickens

Docket Nº:26911
Citation:285 S.W. 445
Opinion Judge:RAILEY, C.
Party Name:STATE v. DICKENS
Attorney:North T. Gentry, Atty. Gen. (J. W. Campbell, of Stockton, of counsel), for the State.
Case Date:May 28, 1926
Court:Supreme Court of Missouri
 
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Page 445

285 S.W. 445 (Mo. 1926)

STATE

v.

DICKENS

No. 26911

Supreme Court of Missouri, Second Division

May 28, 1926

North T. Gentry, Atty. Gen. (J. W. Campbell, of Stockton, of counsel), for the State.

OPINION

Statement.

RAILEY, C.

On July 30, 1924, the assistant circuit attorney of the city of St. Louis, Mo., filed in the circuit court of said city a verified information, which, without caption and jurat, reads as follows:

'Roy A. Fish, assistant circuit attorney in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the state of Missouri, upon his official oath, information makes as follows: That Everett Dickens on the 28th day of June in the year of our Lord, one thousand nine hundred and twenty-four at the city of St. Louis aforesaid with force and arms, in and upon one Israel Levin feloniously did make an assault; and the said Israel Levin, in fear of an immediate injury to his person, then and there feloniously did put, and by force and violence to his person one hundred and sixty-three dollars, lawful money of the United States of the value of one hundred and sixty-three dollars, all of the money and property of the said Israel Levin from the person of Israel Levin and against the will of said Israel Levin then and there, with force and violence as aforesaid, feloniously and violently did rob, steal, take, and carry away, with the felonious intent then and there to permanently deprive the owner of the use thereof and

Page 446

to convert same to his own use; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state. Roy A. Fish,

'Asst. Circuit Attorney.'

On October 24, 1924, defendant was formally arraigned and entered a plea of not guilty. On the following day said cause was tried before a jury, and the following verdict returned:

'We, the Jury in the above-entitled cause, find the defendant guilty of robbery in the first degree as charged in the information, and assess the punishment at imprisonment in the penitentiary for 5 years.

'Max Meyer, Foreman.'

On October 28, 1924, a motion for a new trial and in arrest of judgment were filed, and both overruled on November 24, 1924. On December 3, 1924, judgment was rendered and sentence pronounced in conformity with the verdict aforesaid. An appeal was granted defendant to this court on December 3, 1924.

On December 2, 1925, a bill of exceptions was filed in the circuit court, and a certified copy of same, in due time, filed in this court.

The facts, as stated by counsel for the state, are substantially correct, and we hereby adopt the same as follows:

'Facts Undisputed.

'The undisputed evidence in this case shows: That on the 28th day of June, 1924, the complaining witness, Mr. Israel Levin, conducted a men's furnishing store, at 4102 West Florissant avenue, St. Louis city, Mo. That on said day, about 8 o'clock in the morning, while engaged in wrapping up some shirts, collars, and ties, that a customer had just purchased, two young men entered his place of business. One of the young men covered the proprietor and his customer, Walter Charles Schuster, a police officer, who chanced to be off duty, in civilian attire and unarmed, with a revolver, and took from the person of Mr. Levin $ 93, and ordered them to 'get around behind the partition,' where the safe was located. The evidence shows they complied.

'Mr. Levin, at the point of the revolver, was forced to open the safe and deliver its cash contents, amounting to $ 70. In the meantime, the other robber, whose name is not disclosed by the record, emptied the cash register of its contents.

'The robber who had forced the opening of the safe threatened the police officer, Schuster, by saying 'If you don't stop looking at me, I will blow your head off,' and on leaving the store further threatened him by saying, 'If you identify me, I will come back and croak you.'

'After ordering their victims to stand with their faces to the wall for thirty minutes, the robbers departed, taking as their loot $ 163.

'A Summary of State's Evidence.

'The following is a summary of the state's evidence (numerals in parentheses refer to pages in bill of exceptions).

'Israel Levin, the complaining witness, testified that on the 28th day of June, 1924, he resided and conducted a men's furnishing store at 4102 West Florissant avenue, St. Louis city, Mo.; that...

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