Hermann v. State

• Decision Date: 07 November 1960
• Docket Number: No. 41660,41660
• Citation: 123 So.2d 846,239 Miss. 523
• Parties: Richard HERMANN and Jane Demuth v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 846

123 So.2d 846

239 Miss. 523

Richard HERMANN and Jane Demuth v. STATE of Mississippi.

No. 41660.

Supreme Court of Mississippi.

Nov. 7, 1960.

L. Bryan Dabney, Vicksburg, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jackson, for appellee.

McGEHEE, Chief Justice.

The appellans, Richard Hermann and Miss Jane Demuth, were jointly indicted, tried and convicted of the crime of armed robbery in Warren County, Mississippi and the former was sentenced to served a term of six years in the state penitentiary and the latter a term of three years. From these convictions and sentences, they prosecute this appeal.

On December 7, 1959, Richard Hermann and Miss Jane Demuth left the city of New York in the latter's Ford automobile and drove to Orlando, Florida where he testified that he desired to contact his sister and that upon learning that she had gone to California, they set out en route to the State of California. They left New York with approximately $70 to $80 which constituted all the money that the two of them had with them. While in Orlando, Florida, they placed in a pawn shop one of the three rifles that they had with them and obtained a loan of $35. They decided to leave Orlando, Florida on December 14, 1959 for the State of California by way of Vicksburg, Mississippi.

Knowing that the gasoline tank on the automobile, which had a capacity of approximately eighteen gallons was almost empty and contained insufficient gas to get the car on into Vicksburg, the appellants, at about one a. m., drove up to an ethyl gasoline pump in front of the filling station and restaurant of W. O. Dewease at or near Bovina in Warren County, Mississippi and remained there until approximately seven o'clock the next morning, December 18, 1959, until the gasoline station attendant would arrive. At about fifteen minutes until seven a. m. the attendant arrived and whereupon Richard Hermann asked him 'What about some gas?' Upon opening the place of business the attendant, James Roy Dewease, a brother of the owner, W. O. Dewease, stated to Hermann in substance that 'I will be gone about ten or fifteen minutes to get the cook and will service your car upon my return.' The motor in the automobile of Miss Demuth was not running at that time but was running when the attendant returned to the filling station. Richard Hermann then stated to the attendant, 'Fill it up all the way.' In the meantime the attendant had turned the switch on for the gas pumps. He then placed in the gasoline tank 16.8 gallons of gas, the price of which amounted to $6.36. While he was filling the tank with gas, both Richard Hermann and Miss Jane Demuth were on the front seat of her automobile, and he was in the driver's seat. While the attendant was hanging up the gasoline hose, after filling the tank with gasoline, Richard Hermann got out of the car and walked partly around the same. The station attendant then walked near him to inform him as to how much gasoline he had placed in the tank and what the price of the same was. The attendant testified that during that time 'the woman in the car slipped over under the wheel.' Richard Hermann opened the car door, and was standing with his head inside of the car in a stooping position, and then 'took a step back and just wheeled with this rifle pointed at my stomach.' Hermann then stated to the attendant 'Don't try anything,' and when the attendant saw him wheel with the rifle on him, he raised his arms and hands automatically. The attendant testified, 'He didn't tell me to throw my hands up, but they just automatically went up. I says, 'Man, what are you doing?' and he said, pitch me your car keys.'

Thereupon the station attendant informed the appellants that he didn't have the car keys, that he had left them in the car that he used in going after the cook. Richard Hermann then got into the car and 'the woman drove the car away.'

Thus, it will be seen from the foregoing that the crime of stealthily obtaining the gasoline was completed before Richard Hermann pointed the rifle at James Roy Dewease, with the exception that there had been no asportation of the gasoline from the place of business of W. O. Dewease at that time. The appellants were able to make their getaway with the gasoline by placing the gasoline station attendant in fear by the exhibition of the deadly weapon, telling him not to start anything, and that 'if you try to follow me, I will hurt you.' The car was driven away while the gasoline station attendant was still standing with his arms and hands raised in the air. At that time Wiley Tyson, father-in-law of W. O. Dewease, was on the inside of the restaurant where he could and did see Roy Dewease holding up his hands as the appellants drove the car away, but was unable to see the car or either of the appellants from the place where he was standing in the cafe or restaurant at that time.

From the scene of this crime, the appellants immediately continued on their journey to California, crossing the Mississippi River at Vicksburg and were later arrested and taken into custody at Monroe, Louisiana. They had left the State of New York with three rifles and an ample supply of ammunition, as well as a camera, fishing equipment, archery equipment and various articles of personal property, including their clothing. The rifle which was pointed at Roy Dewease was found by the...