State v. Casey, 47715
| Decision Date | 10 October 1960 |
| Docket Number | No. 1,No. 47715,47715,1 |
| Citation | 338 S.W.2d 888 |
| Parties | STATE of Missourl, Respondent, v. Clyde Ben CASEY, Jr., Appellant |
| Court | Missouri Supreme Court |
Charles M. Shaw, Clayton, for appellant.
John M. Dalton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., for respondent.
COIL, Commissioner.
A jury convicted Clyde Ben Casey, Jr., of robbery in the first degree with a dangerous and deadly weapon and fixed his punishment at ten years in the state penitentiary. Casey has filed no appellate brief and we therefore examine the assignments of error contained in his motion for new trial. Assignments 1 and 2 urged that the trial court erred in admitting state's exhibits 5 and 17, respectively, each of which was a portion of a lady's nylon stocking which had been knotted at the top so that it could be used as a cap and mask over one's head and face. The third and final assignment charged that the trial court erred in failing to declare a mistrial because the state's attorney disclosed to the jury that a prior trial of defendant for the same offense had resulted in a mistrial.
The evidence tended to show that on November 17, 1958, Armin Wachter was robbed in his drugstore at 9th and Russell in St. Louis. About 8:30 in the evening Joan Casey, with whom defendant had been living immediately prior to the occasion in question, entered the drugstore, made a purchase, and departed. Shortly thereafter three men entered, each with a portion of a lady's nylon stocking covering his face. Two of the men had automatic pistols which they pointed at Mr. Wachter, demanded and took $1,300 of his cash and his checks amounting to $400.
During the robbery, one of Wachter's employees went from the rear of the store into a hall and upstairs where he informed a doctor who officed there of the fact of the holdup. While the doctor called the police the employee saw through a front window a 1955 grey-and-white Oldsmobile (which had been theretofore stolen from its owner) standing in front of the drugstore with a person in the driver's seat. Thereafter, he saw three men leave the store, get into the Oldsmobile, one in the front seat and two in the back, and the Oldsmobile drive away. Meanwhile, two police officers in a patrol car who had been alerted, apparently through the doctor's call, saw and pursued the Oldsmobile as it turned west on Geyer from 9th Street. West of 10th the Oldsmobile pulled to the curb and the police car pulled alongside. At that time the driver of the Oldsmobile, Joan Casey, saw the policemen and drove rapidly away with the police car in pursuit. During the time the police officers were stopped abreast the Oldsmobile and later as they pursued it, they both identified Joan Casey as the driver and the defendant as one of the occupants of the rear seat. The Oldsmobile eluded pursuit and was found abandoned that same evening. Meanwhile, a Mercury automobile belonging to the defendant was found parked in the 1000 block of Geyer, and Joan Casey was arrested later that same evening when she arrived by taxicab and was preparing to enter the Mercury.
In the abandoned Oldsmobile were found three cigar boxes which had contained money taken from the drugstore, as well as other stolen items, including some of the checks. Also found in the abandoned Oldsmobile was exhibit 5 which, as heretofore noted, was a portion of a lady's nylon stocking which had been knotted at the top, and which was identified as identical in color and similar in other respects to the stocking masks the three Wachter robbers had worn.
While, as noted, defendant charged the trial court will error in admitting in evidence exhibit 5, not only is it apparent that the exhibit was clearly admissible as circumstantial evidence tending to prove the state's contention that defendant was one of the men who held up and robbed Mr. Wachter, but the record shows that defendant's counsel not only failed to object to the exhibit but specifically stated that he had no objection to its admission.
On December 5, 1958, eighteen days following the robbery, defendant was arrested under these circumstances. About 2 o'clock in the afternoon, two police officers in a patrol car saw defendant riding as a passenger in the front seat of an automobile between one Griffin who was driving and one Stevens, the other passenger. The officers stopped the car and 'placed them under arrest.' The automobile was searched. On the ledge immediately in front of the rear window were three caps stacked one inside the other, and exhibit 17 (a portion of a lady's nylon stocking knotted at the top) was found inside one of the caps. The officer who found the exhibit testified that it was similar in color and texture to state's exhibit 5, which, as noted, had been described as identical in color and similar in other respects to the masks worn by the robbers at the time of the holdup. The automobile in which defendant was riding at the time of his arrest was not his. Its ownership was not shown in evidence and it was not shown that either of the persons with defendant...
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