State v. Culpepper

• Decision Date: 18 March 1922
• Docket Number: No. 23030.,23030.
• Parties: STATE v. CULPEPPER.
• Court: Missouri Supreme Court

238 S.W. 801

293 Mo. 249

STATE v. CULPEPPER.

No. 23030.

Supreme Court of Missouri, Division No. 2.

March 18, 1922.

Appeal from Circuit Court, Howell County; E. P. Dorris, Judge.

Wallace Culpepper was convicted of robbery in the first degree, and he appeals. Reversed and remanded.

M. E. Morrow, of West Plains, for appellant.

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.

HIGBEE, P. J.

The defendant and his wife, Ora Culpepper, were jointly charged with the crime of robbery in the first degree. The defendant was found guilty, and sentenced to the penitentiary for five years, from which sentence he appealed. Mrs. Culpepper was acquitted. The information charged that—

The defendants, on January _____, 1921, "at the county of Howell, did then and there unlawfully and feloniously make an assault (?) and one check for $175 and of the value of $175, the property of the said Frank McGrath, from the person and against the will of the said Frank McGrath then and there, by putting the said Frank McGrath in fear of some immediate injury to his person, feloniously did rob, steal, take and carry away," etc.

The prosecuting witness, Frank McGrath, and the defendants lived in Mountain View, in Howell county. Culpepper was city marshal, and he and McGrath were real estate agents; not partners, but sometimes working together. Frank McGrath and his brother, G. A. McGrath, owned an 80-acre tract of land in Shannon county, east of Mountain View; the title being in G. A. McGrath. They had sold this farm to A. E. Robinson who lived in Nebraska, and deposited the deed in escrow in the People's Bank at Mountain View, to be delivered on the payment of the purchase price. Culpepper claimed he had the land for sale for Robinson; that he had contracted to sell it to James Sentler; that Frank McGrath said to close the deal, and he would make a deed directly to Sentler, with Robinson's consent; that Frank McGrath told him, Culpepper, he would see he got his commission; that McGrath would never make the deed, and that he lost his commission of $125. He also claimed that McGrath got a commission of $100 on a land deal he (Culpepper) negotiated for a Mr. Todd, and paid Culpepper only $50 of this, and that he owed him the other $50.

Frank McGrath testified that Culpepper called him into his house, saying, "I have a telegram from Robinson, and want to show it to you." Culpepper had a deal on with Robinson. Witness testified:

"He locked the door and said: `You sit down and write me a check or I will kill you. You did not try to help me in that Robinson deal, and you made me pay a fine for cursing you and knocking you down, and I am going to make you pay that.' I said: `Wallace, I don't owe you any money in that Robinson deal; you never sold the farm for me, but for Robinson, and you ought to go after him.' And he said: `Robinson is up in Nebraska, and I can't make him pay, and I am going to make you pay it. Sit right down and write that check or I will kill you.' I was afraid of him. He knocked me down once before; he was a good big size. He said he went to the justice of the peace at Monteer and filed an attachment against the corn on Robinson's place, and there was no bonded officer in Birch Tree to sign the attachment, and he said, `It would cost all I could get, and I will make you pay it.' He said, `Write that check now.' I knew he had a gun. He did not draw the gun, but I knew he could beat me to death without a gun. I said, `What do you want me to write on the check?' And he said: `$125 on the Robinson commission and $50 on the Todd commission.' I wrote that, and he took the check and indorsed it, and handed it around the door to his wife. He said, `You sit there till I get this check cashed.' I saw his wife go around there; she was gone about 15 minutes, and when she came back she made a racket with the stove poker. He then said, `Now you can go on about your business, and don't speak to anybody about this.' I promised I would not. He told me he would kill me if I told anybody * * * I wrote the check because I was afraid of him and had to. He told me time and again he always carried a gun. I only saw Culpepper in the house. [Here the check was read in evidence.] He [Culpepper] never claimed I owed him a commission. I don't owe him a cent. I may have testified at the preliminary examination that he claimed all of the commission. Todd owned 40 acres near Mountain View. Culpepper just showed that farm to the purchaser. I turned the buyer over to him the first day. I showed it the second day. I brought the buyer back to Mountain View, and they made the deal. Culpepper was in the real estate business. We were working together. We were not partners. If he made the deal, he got half the commission. If I sold it, I got all. I saw Defendant's Exhibit 1 before the day of the robbery; don't know that I saw Exhibit 3. I don't know if Wallace is claiming a commission from me or not. He sold the farm to Sentler for Robinson. I told Sentler that if Culpepper would write to Robinson and have Robinson write to the bank and tell me to make a new deed instead of the one made to him, we would do that. Robinson sent a telegram to Culpepper to see me for the terms on the deal when I first sold the farm. Culpepper came to my office and said, `McGrath, I have sold that Robinson place, and I have a telegram from Robinson and it says to see you for the terms,' and I took him to the bank for him to see the contract."

Defendant offered in evidence, as part of McGrath's cross-examination, Exhibits 1, 2, and 3, the first two being telegrams and the third a letter, all addressed to W. W. Culpepper and signed by A. E. Robinson. They were excluded as incompetent. They are as follows:

Exhibit 1: "I will sell my eighty acres for $2,500. Send me bank draft for $800 and see Frank McGrath for terms."

Exhibit 2: "I will accept the $700. Send to Box 987, Scotts Bluff, Nebr."

Exhibit 3: "I mailed instructions to the People's Bank some time ago in regard to our deal. I think you will find the instructions plain enough and fair enough."

Witness continuing:

"Robinson paid $500 cash and was to pay $200 a year. We made the deed and put it in the bank with the payments. He was to get the deed when he made all the payments. Afterwards Culpepper said Robinson had sent him a telegram to see me about the deal. We went to the bank, got the contract and the deed and I said to Culpepper, there is the way it is; he was making the other deal for Robinson. Robinson had never authorized me to withdraw that deed and make it to some one else."

As to the $50 Todd commission, witness testified:

"I turned the buyer over to Culpepper who showed him the farm the first day, and I took him out the second day, and he said he would take the place. We went to the banker, and I left it with him to get up the deeds. Culpepper said if I would send a buyer to him we would split the commission. I told Sentler I would sell him that farm and make him a deed to it if he would pay all cash if it was all right with Robinson. I did not offer to make a deed to Sentler."

James Sentler, for the defendants, testified:

"I bought the Robinson 80 acres through Wallace Culpepper. Culpepper got a telegram from Robinson to go to McGrath for the terms. I went to McGrath. He said to go down to the bank and get the contract, and he would fix the papers. We went to the bank and fixed the contract, and I laid down $100, and soon after I paid $600, but never got the papers. I got the money back finally. McGrath never did exactly refuse, but just kept putting us off. I took my wife there twice, and he always let on as if he couldn't make it then."

Defendant then read in evidence a contract dated September 4, 1919, for the sale by Jesse G. Todd of 40 acres in Howell county to Alonzo Manley for $2,000. It recites that W. W. Culpepper is entitled to a commission of 5 per cent. for the sale.

The defendant, Wallace Culpepper, testified:

"Frank McGrath came to my house January 20, and said, `Have you heard anything more of the Robinson deal?' I said, `Frank, you owe me $175 commission on this and the Todd deal, and I want my money, and if you don't pay it I will sue you.' He said he would rather pay me than have a lawsuit; that he had no money or bank check. I got a blank check, and he wrote the check and gave it to me. I indorsed it and gave it to my wife. She went out the door. It was not locked. I didn't tell him I would kill him if he didn't sign the check. I threatened to sue him. I took Manley to the Todd place and showed it to him. I did not agree to divide the commission with McGrath. I never worked with him. The commission was to be $100. I was standing in the bank one day, and McGrath came out and said, `I have been in there and divided our commission in the Todd deal; it is right there in my pocket, and you can get it when you can.' I told him that it belonged to me. That was quite a while before January 20. I asked him at different times to pay me, and he said he didn't owe me anything. I sold the other farm to Sentler, and got a telegram to see McGrath for terms. We went to...