State v. Chernick, 44354

• Decision Date: 13 June 1955
• Docket Number: No. 1,No. 44354,44354,1
• Citation: 280 S.W.2d 56
• Parties: STATE of Missouri, Respondent, v. Glenn CHERNICK, Appellant
• Court: Missouri Supreme Court

Page 56

280 S.W.2d 56

STATE of Missouri, Respondent, v. Glenn CHERNICK, Appellant.

No. 44354.

Supreme Court of Missouri, Division No. 1.

June 13, 1955.

Morris A. Shenker, St. Louis, for appellant.

John M. Dalton, Atty. Gen., John S. Phillips, Asst. Atty. Gen., for respondent.

VAN OSDOL, Commissioner.

Defendant has appealed from a judgment and sentence of five years in the state penitentiary upon his conviction of robbery in the first degree by means of a dangerous and deadly weapon, Sections 560.120 and 560.135 RSMo 1949, V.A.M.S. The charge by indictment arose out of events occurring April 24, 1953, at the Southwest Bank situate on the southwest corner of the intersection of Southwest Avenue and Kingshighway Boulevard in St. Louis.

After the trial of the instant case, defendant was tried and convicted of assault with intent to kill with malice aforethought, Section 559.180 RSMo 1949, V.A.M.S., and his punishment was assessed at twenty years in the state penitentiary. Defendant also appealed from the judgment and sentence for assault, and upon review by this court the judgment was reversed and the cause remanded. See State v. Chernick, Mo.Sup., 278 S.W.2d 741.

In the trial of the instant case the evidence introduced was in most respects and in substance like that introduced in the assault case, but we deem it necessary to set out and review the evidence as introduced in the trial of the instant case.

A little after ten in the morning of April 24, 1953, three armed men entered the Southwest Bank. One of them, Fred Bowerman, took a position on a counter near an entrance of the bank building and, armed with a sawed-off shotgun, 'covered' the employees and customers and directed the movement of his confederates; another, Frank Vito, carrying a satchel, gathered cash from various tellers' cages; and the other, one William Fred Scholl, crouched in front of a counter and, with pistols, was also covering the Bank's employees and customers. Under the cover and protection and by means of the threats of the use of these dangerous and deadly weapons, Vito took more than $140,000 from drawers of several tellers' cages, including $15,577.77 from the drawer of Cage No. 7 which was in charge of Bank's teller, Alice Ruzicka. Presently, however, Robert Heitz, a policeman, entered the bank through a north (Southwest Avenue side) door and fired his pistol striking Scholl through the back. The noise of Heitz's pistol attracted the attention of Bowerman and Vito who both fired wounding Officer Heitz. But within a very few minutes the bank was surrounded by many policemen. And, although, as stated, Vito had taken large sums of money from tellers' cages, the three--Bowerman, Vito and Scholl--were unable to escape. Bowerman, forcibly employing a customer as a hostage and shield, attempted to escape through the front door and was shot and fatally wounded by Officer Stein; Vito destroyed his own life; and Scholl, wounded by Officer Heitz, surrendered.

It was and is the State's theory that defendant, acting in concert with Bowerman, Vito and Scholl, was constructively present and aiding and abetting by operating a 'getaway' car. There was evidence introduced tending to show that a 1951-model Oldsmobile of green color was parked headed southwardly at the curb in a 'no parking' zone on the west side of Kingshighway. At a time when it was seen that police officers had the bank building entirely surrounded and that Bowerman, Vito and Scholl were entrapped, the driver of this automobile drove away. There was evidence that, at the time, Vito, within the bank, had remarked to Scholl that the 'car was gone.' It is the State's factual theory that defendant was the driver of the green Oldsmobile.

Defendant urges that the trial court erred in overruling his motion for judgment of acquittal. He says the evidence introduced by the State consisted of isolated circumstances supporting mere possibilities or suspicion, which, in themselves, were insufficient to justify conviction of crime. Defendant-appellant makes other contentions of errors of the trial court, some of which contentions we shall consider after we shall have examined the evidence tending to show defendant's guilt.

There was evidence introduced tending to prove that, April 14, 1953, defendant, using the name of 'George Roche,' rented two rooms on the third floor of the Ottinger home at 1918 Victor in St. Louis. Defendant and another man (who, it may be inferred, was Vito) occupied the rooms. The two men left the Ottinger home a little after seven in the morning of April 24th. Defendant returned at eleven, and was in the house for not more than ten minutes; and again, about one in the afternoon, defendant returned for a short while. The Ottinger home is about one and one-half blocks from a point on Lemp Avenue where a black Oldsmobile was found on April 25th. It is inferred that this automobile had belonged to Vito.

Witnesses testified that defendant and another came to a sandwich shop situated across Kingshighway from Southwest Bank. This was in the afternoon of April 22nd. Defendant asked directions to Kingshighway and Gravois. Defendant and his companion then walked over to the window facing Kingshighway and engaged in conversation 'between themselves.' There was also testimony that defendant and Bowerman appeared at a hardware store on Gravois a short distance from the Ottinger home. This, it seems, was in the week prior to the robbery. Defendant asked for a certain type of ammunition. There was no ammunition of that type in the store, and defendant and Bowerman departed.

Myrtle Howard, a Salvation Army collector, was stationed near the front door of the Southwest Bank the morning of April 24th. She learned they were 'having a holdup' in the bank. 'After they started shooting,' a man got out of an automobile parked at the curb. He got out of the passenger side--the side next to the curb. He drew a revolver and pointed it at the witness or at Officer Stein, who had also taken a position near the front door of the bank. When the officers were 'coming so fast,' the man backed around the hood of the car and momentarily stood on the other side with the gun pointing toward the witness or Officer Stein, and then the man got 'in the car and drove off real fast.' The man was dressed in a light tan suit and a light overcost. The automobile was 'light on top and kind of a little darker on the bottom, a green.'

Richard P. Compton, a salesman, was in the vicinity of Southwest Bank at ten or ten-fifteen in the morning of April 24th. He saw a '51 or '52 Oldsmobile of drakgreen color parked in the 'no-parking' zone. The witness heard some shots, and saw a man 'come around to that car' and speed away. The witness said the man was about the same height as defendant but of somewhat lighter weight. The witness noted the Illinois, license number displayed on the green Oldsmobile. This Oldsmobile was found by the police, April 25th, at a point on Northrup within a few blocks of Southwest Bank.

April 26th, a blue Hudson automobile was found parked on Shaw Avenue four or five blocks from Southwest Bank. The Hudson had belonged to one Fredericks, also known as Bowerman.

Casmir Lapski, who was a newspaper vender with station in front of the bank on April 24th, testified that he saw defendant drive a green automobile to a point near the bank. Two other men got out of the car 'near a small park' and went into the bank. Defendant drove on down toward Shenandoah to turn around, and the car was then parked on Kingshighway near Shenandoah about a half block from the bank. The witness further said he saw the car 'for the last time when the detectives took the car' away. The witness is Polish, and testified through an interpreter.

Defendant was apprehended in Chicago and was brought to St. Louis in June, 1953. The Circuit Attorney testified that he questioned defendant on June 24 or 25, 1953. Defendant admitted that he was in St. Louis in April, 1953; and that he had known Vito in Chicago, and also...