State v. Aubuchon, 49909

• Decision Date: 14 September 1964
• Docket Number: No. 49909,No. 2,49909,2
• Parties: STATE of Missouri, Respondent, v. Roland John AUBUCHON, Appellant
• Court: Missouri Supreme Court

Page 807

381 S.W.2d 807

STATE of Missouri, Respondent, v. Roland John AUBUCHON, Appellant.

No. 49909.

Supreme Court of Missouri, Division No. 2.

Sept. 14, 1964.

Thomas F. Eagleton, Atty. Gen., Jefferson City, William L. Hungate, Spec. Asst. Atty. Gen., Troy, for respondent.

Stephen W. Skrainka, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for appellant.

EAGER, Judge.

Defendant was found guilty by a jury of first degree robbery by means of a dangerous and deadly weapon; upon a finding by the Court of five prior felony convictions he was sentenced to a term of forty years' imprisonment, after the Court had first considered and overruled a rather exhaustive motion for a new trial. This defendant was jointly indicted with one Charles Cochran, but a severance was granted. The defendant was represented at the trial and is represented on this appeal by most assiduous appointed counsel.

In substance, the evidence disclosed the following facts: the filling station of Sweeney and Son at North Broadway and East DeSoto in St. Louis was robbed of approximately $147.88 at about 7:00 p. m. on April 7, 1962. The exterior of the station was well lighted at the time. The lone attendant, Wayne Love, was outside working on his car when a man (later identified by Love as Charles Cochran) approached him from the rear of the station, pointed a revolver at him, and ordered him inside. When Love had gotten inside, this man took the money in his coveralls, ordered him to unlock the 'back room,' pushed him in there and took the money from the cash box; when all this was completed, the man backed out and slammed the back room door. As Love opened the door to go into the back room he had seen a man standing outside the station, 'just standing,' with a scarf wrapped around his head; Love thought this man was 'facing in' the station. About 15 or 20 seconds after the inside man slammed the door, Love heard running, the words 'Halt. Stop,' and two shots. After about 35-40 seconds he opened the door and called the police. Love did not identify the man who was outside the station. He was sufficiently acquainted with defendant Aubuchon to speak to him. He identified the revolver produced as an exhibit as the same one or similar to the one used by the man who robbed him.

Patrolman Albert Lancaster and Major Joseph J. Gallagher of the St. Louis Police Department, not in uniform and driving an unmarked car, pulled into the filling station at the time of the holdup because the car which Love had been working on resembled one reported in a robbery. Lancaster testified: that he saw a man standing at the south end of the station looking in the window; this man had on a gray mackinaw or car coat and a scarf over his head; Lancaster jumped out on the passenger's side, started toward the man saying 'halt, police officers'; the man was then facing the officers, he looked straight at Lancaster from a distance of about 25-35 feet, and the officer saw the man's face; thereupon the man pulled his coat collar over his head, turned, and ran down an incline back (east) of the station to Bulwer Street, thence south on Bulwer, with Lancaster in pursuit; Lancaster also testified that the man turned his head as he started down the incline, apparently to see if he was being followed. At this time Lancaster was almost close enough to grab him. Lancaster continued the pursuit on Bulwer to East Prairie, thence east to an alley and down the alley to Gano, where the man made a right turn and he lost him. During the first part of this pursuit Lancaster fired one warning shot. Major Gallagher, in the meantime, had tried to follow in the car and he picked up Lancaster, who immediately broadcast a description of the man and a request for a pickup; very shortly thereafter they met Officer O'Hearn about two blocks away, with a man in custody whom Lancaster promptly identified as the man he had pursued; this man was dressed in the same manner (except for the scarf). Lancaster positively identified defendant at the trial as the man whom he had thus pursued. This witness was cross-examined at some length from notes which defendant's counsel had made at the time of an interview; the notes had been very promptly transcribed. Lancaster had made the police report and he had also given a statement to the warrant office; one or both of these had been signed by him.

Major Gallagher saw a man moving around the southwest (front) corner of the station, moving toward the rear; this man ran through the back lot and Lancaster chased him. Gallagher had gotten out of the car after he stopped, but he did not see this man's face; he saw a scarf 'across the top of his head and down the back of his head'; Gallagher re-entered his car when the chase began, followed as best he could on the streets, and soon located Lancaster; he confirmed the latter's statement about finding defendant in the custody of Officer O'Hearn. Officer O'Hearn testified that he heard the broadcast description while cruising the neighborhood, that within one to two minutes thereafter he saw a man running across East Grand just east of Broadway (about two blocks from where Lancaster lost his man) and arrested him in a parking lot; that this man was breathing heavily, was perspiring, and appeared tired; he was wearing a gray car coat and work pants, with nothing on his head. This officer identified the defendant as the man whom he had thus arrested.

Officer Edward Mitchell arrested Charles Cochran (the joint indictee) at 11:00 p. m. on the next evening after this robbery, at his mother's home. The mother gave the housekey to Mr. Mayfield, a parole officer, and they entered. They found Cochran lying on the floor with a loaded .32 caliber pistol in his right hand. Mitchell stepped on his hand and disarmed him. The revolver offered and received in evidence was identified by Mitchell as the one he took from Cochran. Mitchell had gone there on call to assist other officers and he met them and Cochran's mother standing on the street. This officer testified that Mrs. Cochran was afraid of her son. All of this evidence went in without objection.

Anna Mae Gore, a sister of Charles Cochran, testified: that defendant and Cochran and two others were at her place early in the afternoon of April 7, 1962, but left between 2:00 and 3:00 p. m. She then lived at 121 East Grand, alone; this address was in the general vicinity of Sweeney's filling station, perhaps four or five blocks away. She had known defendant for about twenty years; her brother Charles had been staying sometimes at her home and sometimes at his mother's. On the same afternoon at about 4:00 or 4:30 defendant, Charles Cochran, one Mandino and Skip Hayes were there; all had a drink, and this present defendant (whom she called Junie) 'displayed a gun' which was either the same one or similar to the one introduced as an exhibit; he merely showed it and then put it back in his pocket. At around 5:30 or 6:00 o'clock all four left, but they soon returned; thereafter Aubuchon, the present defendant, took the revolver out of his pocket and handed it to Charles Cochran who asked him where the shells were; defendant then gave Cochran some shells and the latter 'loaded the gun' and kept it, putting it in his pocket. In about twenty minutes thereafter and at about 'dusk' Cochran and Aubuchon left, but before leaving the defendant said,--'let's go up to Sweeny's and get Sweeny's' that Wayne was working up there, and that 'they kept quite a bit of cash on Saturday evenings.' That her brother said 'Okay'; that defendant Aubuchon borrowed a scarf from her and 'they' told her to stay there, that they were 'on foot' and they wanted a place to go; that they went out through the alley toward Bulwer Street; that defendant was dressed in a dark gray car coat and tan trousers. On cross-examination of this witness the following was developed: that she had appeared without subpoena, but at the request of the Circuit Attorney; that about three years previously another brother, James LeRoy Cochran, was tried twice in the federal court for the robbery of the Roosevelt Savings Bank; that she was not present at his first trial; that she heard that defendant Aubuchon had testified in one of these trials; that she did not know what had caused that brother's arrest. She stated, volunteering an answer to a remark of defense counsel, that she did not 'suspect the defendant is the informer.' She admitted that she had called defendant's mother at 2:00 a. m. within the past week and had talked about 'this' (present) trial; that the stated purpose of the men in transferring the pistol was 'to go get some money'; when asked if she would be happy to see defendant up in jail she replied: 'Well, when we do these things, we must be punished for it, whether it's me, you, or whoever it is. It doesn't make me happy to see anyone go in jail, and ----.' On redirect, the following occurred: 'Q Where is your brother, Charles Cochran? A Jefferson City, Missouri. Q In the penitentiary? A Yes. MR. SKRAINKA: Objection, Your Honor. That's not in this case. MR. KOSTER: Well, I would like to ask a couple more questions, Judge. THE COURT: Maybe he will connect it up. I will hold a qualified ruling on that objection, Mr. Skrainka. Go ahead.' It was further developed at that time, without objection, that James LeRoy Cochran had also been tried in the state court about six months to one year previously for armed robbery and sentenced to ten years' imprisonment; and, finally, that the witness had been sometimes known as Mrs. Hayes, but she was not married to Hayes.

The fact of defendant's prior convictions, the service of sentences, and his discharges from imprisonment were stipulated. The defendant did not testify. On his behalf the following evidence was developed: that he had worked three days immediately preceding the day of the robbery at a venetian blind plant, and that his wife had later picked up his...