State v. Carey
| Decision Date | 22 December 1925 |
| Docket Number | No. 26465.,26465. |
| Citation | 278 S.W. 719 |
| Parties | STATE v. CAREY. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Greene County; Warren L. White, Judge.
Frank Carey was convicted of burglary, and he appeals. Affirmed.
Irwin & Dunn, of Jefferson City, for appellant.
Robert W. Otto, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty. Gen., for the State.
Statement.
On August 15, 1924, the prosecuting attorney of Greene county, Mo., filed, in the criminal court of said county, an amended information, which, without caption and jurat, reads as follows:
On August 15, 1924, appellant filed a motion to quash the amended information, which was overruled, and thereafter, on the same day, defendant filed his motion for a continuance, which was likewise overruled. Thereafter, on the same day, defendant was formally arraigned and entered a plea of not guilty. On the same day, the jury, before whom the case was tried, returned into court the following verdict:
Timely motions for a new trial and in arrest of judgment were filed and overruled. Thereafter judgment was rendered, sentence pronounced, and an appeal granted defendant to this court.
Evidence on behalf of the state:
E. M. Wilhoit testified, in substance, that he was president of the E. M. Wilhoit Oil Company of Missouri, which owned a filling station at State and Campbell streets, in Springfield, Greene county, Mo.; that on July 16, 1924, the station was burglarized, one of the rear windows prized up, and a safe had been broken open and the contents rifled.
O. W. Hulse, a police officer, testified, that he received a call about 4 a. m. on July 16, 1924, to go to the Wilhoit station; that officer Webb accompanied him, and they found the defendant standing in the door of the station; that a sledge hammer and a punch were lying on the floor of the station; that the outer door of the safe was open, and an inner door of same was battered; that the safe contained no money; that he took an automatic pistol from the defendant, and later took from him a spring-back knife and about $27 in cash, including some paper rolls containing pennies and nickels; that defendant made no explanation as to the money taken, nor as to his presence there. On cross-examination, witness testified that defendant was standing in the open door of the station; that he walked toward the police car as it drove up and made no resistance; that the above occurred about daybreak.
W. K. Webb, a policeman, testified, that on the morning of July 16, 1924, he was called to the E. M. Wilhoit filling station, with Officer Hulse; that as they drove up to the station, which was dark at that time, they stopped, and defendant came out to meet them; that one man ran, and witness ran after him; that he caught this man, and his name was Herman Hedgpeth; that the above occurred about 4 o'clock in the morning, and it was dark.
F. M. DeArmond, a police officer at Springfield, Mo., testified that he knew Herman Hedgpeth and Billie De Mombrom; that about 10 o'clock on the night of July 15, 1924, he saw them at Tony De Mates' place on South Campbell street; that he next saw them at the filling station the following morning about 4 o'clock, and they were then in a Ford roadster; that he arrested De Mombrom about 20 minutes after defendant was arrested; that $57 in cash was taken from Hedgpeth, but be had no wrapped money; that a little money was taken from De Mombrom.
Merrill Banning testified that he was 20 years old, and worked for the E. M. Wilhoit Oil Company by the day, and was so employed on the morning of July 16, 1924; that he was working at the station located at State and Campbell streets; that it was his duty to lock up the station; that about 9 o'clock on the night of July 15, 1924, he locked up said station; that there was somewhere near $100 on hand, and he locked it up in the safe of the company; that he next saw the station about 4:30 the morning of July 16, 1924; that he stayed right across the street from the station, and was awakened by hearing a shot; that he dressed and went to the station, where he found the door open and one of the windows open, which had been nailed down; that he saw the marks from prying the window; that he saw there a tire tool and a screw driver, lying on the outside below the window; that the safe had been hit with some instrument, and the door of same was open that all the money which he left in the safe the night before, except a check for $2.27, had been taken from the safe; that part of the nickels and pennies left in the safe were in the original wrappers, similar to those taken from defendant at the time of his arrest. These wrappers were secured from various banks.
Nelson Dickinson an employee of the oil company, testified that the loss sustained wets $104.32.
W. K. Webb was recalled, and testified that the money taken from Hedgpeth was all paper money, which he had thrown down when pursued. He had some other money which he said was his own; that he was chased about three blocks from the above station; that the officer did not know it was Hedgepeth when the chase started.
Defendant's evidence:
Mrs. Mary Bradley, who kept a rooming house at 408½ West Walnut, testified that defendant roomed at her house on July 15 and 16, 1924; that she saw him about 10 o'clock on the night of July 15th; that he paid his room rent on that occasion and had some money left; that De Mombrom paid his bill, amounting to $2.
H. E. Wheelbarger, who operated at billiard hall in Springfield, testified that he loaned defendant $30 the evening before the burglary; that the money loaned him was in paper and silver, and included about $4 or $5 of wrapped nickels, pennies, and dimes; that wrapped money is used at the hall at all times; that he did not know how many rolls were given defendant.
Frank Carey, the defendant, testified, in substance, that he was arrested the morning of July 16, 1924, after he had crossed the street near the station; that his attention was called to the station, and he saw two men running out of the door; that he had just stepped up to look in the door when the police arrived; that he turned and walked toward the car; that he had been playing poker the evening before, with the money he got from Wheelbarger; that he went to the game about 12:30 a. m. and was on his way home when arrested; that he made no resistance to his arrest; that the money taken from him was that borrowed from Wheelbarger; that he received the wrapped change from Wheelbarger; that he left the poker game about 3:30 a. m.; that he did not use any of the nickels or pennies in the game; that he carried a revolver because of threats, and in order to protect his life.
Opinion.It is contended by appellant, that' the evidence is insufficient to sustain the verdict, and that his demurrer to the evidence at the conclusion of the case should have been sustained. The evidence is set out very fully in...
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State v. Tucker
...284 S.W. 799; State v. Carey, 278 S.W. 719; State v. Tipton, 271 S.W. 55. The verdict is in proper form. State v. Henderson, supra; State v. Carey, supra. (2) Appellant's contention that the death of Judge Walker terminated the August Term of court and that Judge Kelley had no jurisdiction ......
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State v. Tucker
...not challenged. It was proper to allege burglary and larceny in one count. Sec. 4056, R.S. 1929; State v. Henderson, 284 S.W. 799; State v. Carey, 278 S.W. 719; State v. Tipton, 271 S.W. 55. The verdict is in proper form. State v. Henderson, supra; State v. Carey, supra. (2) Appellant's con......