State v. Childers

• Citation: 313 S.W.2d 728
• Decision Date: 09 June 1958
• Docket Number: No. 46420,No. 1,46420,1
• Parties: STATE of Missouri, Respondent, v. William CHILDERS, Appellant
• Court: United States State Supreme Court of Missouri

Page 728

313 S.W.2d 728

STATE of Missouri, Respondent, v. William CHILDERS, Appellant.

No. 46420.

Supreme Court of Missouri, Division No. 1.

June 9, 1958.

No attorney for appellant.

John M. Dalton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., for respondent.

HOLLINGSWORTH, Presiding Judge.

Defendant, William Childers, has appealed from a sentence of imprisonment in the State Penitentiary for a term of fifteen years imposed upon him pursuant to the verdict of a jury rendered in the Circuit Court of the City of St. Louis finding him guilty of the crime of robbery in the first degree by means of a dangerous and deadly weapon. He has filed no brief and we therefore review the assignments of error validly set forth in his motion for new trial as required by S.Ct. Rule 27.20 and the essential portions of the record as required by S.Ct. Rule 28.02, 42 V.A.M.S. State v. Dees, Mo., 276 S.W.2d 201, 203.

The evidence in behalf of the State justifies the following statement of facts:

On the night of June 22, 1956, Robert Staley was on duty as a bartender in the tavern owned by Michael Michaleh and located at the northeast corner of South Kingshighway and Juniata Streets in the City of St. Louis. South Kingshighway extends north and south; Juniata extends east and west. There are entrances to the tavern from both streets. A bar extends east and west along the north portion of the building. In the rear of that bar is a kitchen and in front of it are tables for customers.

At about 11 o'clock, Staley, the bartender, was standing back of the bar in front of the cash register. Several customers were seated upon bar stools and others were seated at tables to the south of those stools. Among the customers seated at the bar, and near its west end, was Joseph Moose, a corporal in the St. Louis Police Department, then off duty and in civilian attire. To the east of him at the bar sat his wife and to the east of her sat their guest, Mrs. Bode; other customers sat near the east end of the bar. Two unmasked men, later identified by several of those present in the tavern as the defendant and one William Allen, also known as Bob Myers, entered the tavern. Defendant appeared to be of dark complexion, had a scar on his upper lip and wore a mustache. Allen came to the front of the bar, pointed a pistol toward Staley and directed him to place his hands upon the bar and not to move. Staley did as directed. The defendant walked to the east end of the bar and went behind it, and thence walked westward toward Staley and the cach register. Allen, still standing in front of the bar, directed Staley to move westward, which Staley did. Defendant opened the cash register and took from it $171.20, the property of Michaleh. In the meantime, Allen took the wallet of a customer seated to the east of Mrs. Bode. When and also took the money of a lady customer seated to the east of Mrs. Bode. When Officer Moose saw defendant walk westward behind the bar and open the cash register and saw Allen in front of the bar with a drawn pistol pointed toward him and the other customers, he realized a holdup was in progress. Moose drew a pistol from his pocket and shot Allen. Allen screamed and dropped his pistol. Defendant thereupon fired several shots from a drawn pistol at Moose, one of which struck him in the abdomen. Moose fired severel shots at defendant as the latter dived below the bar, but none of the shots struck him. Defendant and Allen fled through the Juniata Street entrance and escaped. Allen had not been apprehended at trial time.

About midnight of the night of the robbery, Edward Childers, a brother of defendant, came to the home of John H. Stone and his family in East St. Louis. Stone is the husband of a sister of defendant and Edward Childers. Edward Childers and Stone went out to the street, where they saw and talked with William Allen, who sat in defendant's automobile. Allen had been wounded, his arm was bandaged, and he held his stomach. In his hand he held a 'thirty-eight' revolver. After some conversation, Edward Childers and Allen left. About an hour later, defendant came to Stone's home and there related to Stone in detail the manner in which he and Allen had committed the aforesaid robbery, in substance as above stated. Defendant further told Stone that after escaping he had washed dark 'make-up' from his face, called a taxicab from a nearby tavern and had then come to East St. Louis. Defendant remained at Stone's home for several days during which time both Edward Childers and Allen also came there. Allen showed Stone a wound on his wrist and one near his hip. Defendant and Allen then left Stone's home, saying they were going to Kentucky.

On July 29, 1956, Corporal Moose and several of the customers who were present at the robbery identified a picture of defendant shown them by the police as one of the persons committing the robbery at the tavern on June 22, 1956. Several of them also identified a picture of Allen as bearing a close resemblance to the other man participating in the robbery. Those pictures were also shown these witnesses at the trial and again identified by them, and were introduced in evidence. Thereafter on December 17, 1956, at a police station in St. Louis, Moose and others of the customers were present when defendant (who, in the meantime, had been apprehended) was questioned by the police. They there again identified defendant as one of the participants in the robbery. They there also heard defendant say, in substance, that he could not recall the actual robbery, because he had a 'blackout' on that night, but that he probably had 'gone on it' because his wife, Jean Childers, insisted that he perform some robbery with Allen; that the morning after the holdup he woke up at John Stone's home and when he woke up he had a pistol with him and a large amount of money; and that thereafter his brother, Edward Childers, told him about his being 'out on a stick-up' and that he, defendant, never did deny to his brother, Edward, that he had been 'on a stick-up', and that following the 'stick-up' he met Allen, with whom he left town to stay until Allen's wounds were healed. Several of the customers testified at the trial that defendant, whom they pointed out, was the man who had stood behind the bar and had fired several shots at Moose and had taken money from the cash register during the course of the robbery.

Defendant did not testify. However, Joseph Shevlin, a police magistrate in Alorton, Illinois, testified in his behalf that defendant and his brother, Donald, were in his courtroom at 9:00 p. m., on the night of the robbery to answer a charge of disorderly conduct and resistance of arrest and that Bob Myers (Allen) was to have been there to answer the same charge but did not appear, and the case was, for that reason, postponed. Phillip Richardson, a used car dealer, residing near the Alorton police station, also testified in behalf of defendant that he was a surety on defendant's bond for his appearance at the police station and was present at said station with defendant and Donald Childers on the night of the robbery; that defendant and Donald remained at the station until about 9:30 p. m., at which time they went from the station to witness' home, where defendant and Donald remained until 'around eleven' o'clock, p. m.

The evidence is clearly sufficient to support the verdict and judgment. Consequently, the court did not err in overruling defendant's motion for a directed verdict based upon insufficiency of the evidence filed at the close of all of the evidence.

Error is assigned in the refusal of the trial court to sustain defendant's objection to the circuit attorney's advising the jury panel on voir dire examination that it did not make any difference what the jury thought the law was or ought to be. The transcript contains no record whatever as to statements made by counsel for either party during such examination and the motion for new trial is not verified. The law is well settled that such unverified allegations of error do not prove themselves and cannot be considered unless substantiated by the record. State v. Henderson, 356 Mo. 1072, 204 S.W.2d 774, 780; State v. Gaddy, Mo., 261 S.W.2d 65, 68. The assignment is overruled.

The motion for new trial assigns error in the admission in...