State v. Churchill, 45526

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: State v. Churchill, 299 S.W.2d 475 (Mo. 1957)
• Decision Date: 11 February 1957
• Docket Number: No. 45526,No. 2,45526,2
• Parties: STATE of Missouri, Respondent, v. Jack George CHURCHILL, Appellant

Page 475

299 S.W.2d 475

STATE of Missouri, Respondent, v. Jack George CHURCHILL, Appellant.

No. 45526.

Supreme Court of Missouri, Division No. 2.

Feb. 11, 1957.

Rehearing Denied March 11, 1957.

Irl B. Baris, for appellant.

John M. Dalton, Atty. Gen., W. H. Bates, Sp. Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

Jack George Churchill has been found guilty of robbery in the first degree and sentenced to five years' imprisonment. Upon this appeal his assignment of error that the verdict is against the law and the weight of the evidence preserves nothing for review, V.A.M.S. Sec. 547.030; 42 V.A.M.S.Sup.Ct.Rule 27.20; nevertheless, other assignments relating to instructions and to the trial court's failure to sustain his motions for judgment of acquittal require consideration of the essential merits of his conviction.

From the state's evidence the jury could find that on the evening of July 27, 1955, Willard Ray and his wife parked their automobile near the intersection of West Pine Street and Kingshighway and attended a plumbers' convention at the Chase Hotel. Mrs. Ray left the convention about 11:30 o'clock and went home on a bus. Mr. Ray stayed on until about 12:30 when he left the hotel, carrying an almost empty bottle of gin in his hand, and started walking south on Kingshighway in the direction of his parked automobile. He saw someone standing near a bus stop on the west side of Laclede and Kingshighway and thinking that it might be his wife walked on farther south on Kingshighway to a driveway or alley. When he reached this point two young men, Metz and Woodward, approached him, took him by the arm and said that they were going to take him home and urged him to get in a car, a two-tone blue Plymouth parked on the west side of Kingshighway. He first thought they were joke-playing friends but when he discovered that they were not friends he got a knife from his pants pocket and these two young men retreated to the parked Plymouth. Almost immediately two other young men appeared, Churchill and Ridge, and as one of them twisted his arm, causing him to drop his knife, Churchill struck him on the head with a taped 'seaman's spike' and stunned him. When he regained consciousness his wallet was missing from his hip pocket. In the wallet there was about ten dollars in money, his union card, a receipt from the Disabled American Veterans, and an oil company card. An unemployed taxicab driver, sitting on a park bench, saw the Plymouth automobile and observed that it bore an Illinois license plate. He saw two men get out of the car and walk towards the driveway and shortly heard a man cry 'Help, oh, no, don't.' He saw the two men as they returned to the car and identified them as Churchill and Ridge. As the car drove away the taxicab driver walked up to the driveway and saw Mr. Ray 'staggering out,' bleeding from his head wounds. The taxicab driver, Sheehan, and Ray called the police. Ray was taken to City Hospital and in a short while the four young men, Churchill, Ridge, Metz and Woodward, were arrested as they sat in a restaurant. When Churchill's Plymouth automobile was searched the 'seaman's spike' was found under the front seat; the searching officer also found Ray's union card, the receipt from the veteran's organization and the oil company card. After being advised of his rights by a representative of the provost marshal's office, Churchill orally admitted that he and his three companions came to St. Louis from the Scott Airfield Base for the purpose of 'rolling queers' in Forest Park, and, seeing Ray staggering down the street, thought he would be an 'easy touch' and proceeded to rob him as indicated.

As the only witness testifying in his defense Churchill said that he and his companious saw Ray staggering down the street and undertook to help him; he was already bleeding and refused to let them take him home or to the hospital and they all left when he brandished a knife. Churchill identified the 'seaman's spike' which he said he carried to pound out dents in bent fenders but he denied striking Ray and he denied that he or his companions took his wallet and its contents.

In these circumstances, as the jury could reasonably find them, there can be but slight if any doubt that the evidence supports the charge and that the trial court did not err in overruling Churchill's motions for a judgment of acquittal. State v. Shipley, Mo., 232 S.W.2d 515; State v. Gabriel, 342 Mo. 519, 116 S.W.2d 75. The essence of the offense of robbery in the first degree, under both the statute and the common law, is 'feloniously taking the property of another from his person, or in his presence, and against his will' V.A.M.S. Sec. 560.120, and the offense may be committed in two ways; one, by violence, or, two, by putting the victim in fear of some immediate injury to his person. State v. Parker, 262 Mo. 169, 170 S.W. 1121, L.R.A.1915C, 121. The principal instruction here hypothesized a finding that Churchill, either acting alone or with others, 'did feloniously assault' Ray and by force and violence to his person and against his will rob him, and it was not necessary for the court, of its own volition, to define the word 'assault.' State v. Hall, Mo., 7 S.W.2d 1001; State v. Carolla, 316 Mo. 213, 292 S.W. 721. Compare: State v. Farmer, Mo., 130 S.W.2d 572. The evidence, if accepted, shows that Churchill struck Mr. Ray over the head with a 'seaman's spike' and circumstantially--aside from his admission--that either Churchill or Ridge took his wallet from his pocket and that, of course, completed the offense of robbery in the first degree and there were no circumstances compelling an instruction on felonious assault with intent to rob or on simple assault with intent to rob. State v. Hands, Mo., 260 S.W.2d 14; State v. Gaines, Mo., 261 S.W.2d 119. The fact that Ray...