State v. Dickens

• Decision Date: 28 May 1926
• Docket Number: No. 26911.,26911.
• Citation: 285 S.W. 445
• Parties: STATE v. DICKENS.
• Court: Missouri Supreme Court

285 S.W. 445

STATE v. DICKENS.

No. 26911.

Supreme Court of Missouri, Division No. 2.

May 28, 1926.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

Everett Dickens was convicted of robbery in the first degree, and he appeals. Affirmed.

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

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 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, upon opening his place of business on the said 28th day of June, he checked up on the money in his cash register and found that it contained $50. This, added to the previous day's receipts, amounted to $93, which he placed on the wrapping counter near the cash register (5); that Officer Schuster (a policeman) had entered and was selecting some shirts, collars, and ties; that, while he was in the act of wrapping the goods, two young men came in, and one of them stuck a gun in front of him; that he made an effort to get the $93 which he had laid on the wrapping counter, and the man with the gun grabbed for it and made him put it back, and the robber shoved it into his pocket (6); that the man with the revolver forced him and Officer Schuster back in the rear of the room and compelled him to open the safe, and that he opened the safe and the robber took from it $70, in addition to the $93 he had previously taken; that the robbers kept him turning around all the time; that he was so excited he did what he was told to do; that one of the robbers said, `You stay there for half an hour and don't turn around'; that the young men walked out from the store (7); that he and Officer Schuster waited about a minute, after which he called the police, and Schuster went in pursuit of the two young men; that the defendant, Everett Dickens, is about the size of one of the young men who robbed his store, but he could not positively identify him; that the young men were in their shirt sleeves; that the two young men that robbed him came in at the front door at about 8 or half past 8 o'clock (8); that his place of business is at the southwest corner of Florissant and Alice avenues, fronting the former (9).

"Mrs. August Lepholz testified that she resided at 4533 Alice avenue, St. Louis city, Mo.; that about 8 o'clock on the morning of the 28th of June, 1924, she had started out to do some shopping; that she met a neighbor lady at about half a block from the front entrance of the store operated by Mr. Levin (36); that, while conversing with her neighbor, two men passed her going towards the store; that they went into the store and stayed within about five minutes; that the defendant, Everett Dickens, was one of the two men (37); that when they came out they ran into the alley; that the alley was between where she was standing and the store (38); that shortly after the two men ran out of the store Mr. Levin and Officer Schuster came out (39); that on Saturday, the 5th of July, she visited the Fifth District Police Station and there recognized defendant as one of the two men that passed her on the street going into and out of the Levin store (40).

"Officer Charles Walter Schuster testified that he lived at 4557 Mary avenue (64); that on the morning of June 28, 1924, he went to Mr. Levin's store at 4102 Florissant avenue to make a purchase of some shirts, and, while he was looking over the shirts he heard a command, `Get behind the partition'; that he looked around, and Everett Dickens, the defendant, had a gun on him and said, `Get around behind the partition'; that the defendant was the same man that commanded him to go behind the partition (65); that the defendant forced him and Mr. Levin back of the partition while defendant's companion emptied the cash register; that defendant compelled Mr. Levin to open the safe; that defendant took what money the safe contained; that he (himself) was in civilian attire and unarmed at the time; that defendant was not disguised, and that he got a good view of defendant (66); that he had seen defendant before this instance but did not know his name; that he saw defendant's companion take the money from the cash register; that the robbery required from three to five minutes' time; that the defendant said upon leaving, `If you identify me, I will come back and croak you'; that the robbers entered and retired through the front door; that defendant, Dickens, wore a gray cap, white shirt, blue pants with stripes and bell bottoms (67); that the robbers further threatened him, and said, `If you don't stop looking at me, I will blow your head off'; that shortly after the robbers left the building, he ran out and called the Sixth District Station and reported the occurrence (68); that the next time he saw the defendant was on the evening of July 4th, at Jefferson and Cass avenues, at which time he arrested defendant and delivered him to the Fifth District at Tenth and North Market (69).

"A Summary of Defendant's Evidence.

"The following is a summary of the evidence offered by defendant:

"Thomas Keily testified that on the 27th day of June, 1924, he was living at 2300 Benton street (86); that he had known the defendant, Everett Dickens, for four years; that, on the evening of the 27th of June, after he and his mother had eaten their supper, the defendant came by in his car; that they had arranged for a party of four to go to a clubhouse on the Meramec river; that he went with defendant to the home of defendant's girl friend on Elliot avenue (89); that this girl and another girl were to complete the party of four; that the father of one of the girls would not consent to her going without a chaperon; that they went to see a Mrs. Whalen, and she consented to chaperon the party; that the two boys, the two girls, Mrs. Whalen, and her three children arrived at the clubhouse at 8 o'clock in the evening (9...