State v. Dengel

• Decision Date: 23 February 1923
• Docket Number: No. 23429.,23429.
• Citation: 248 S.W. 603
• Parties: STATE v. DENGEL
• Court: Missouri Supreme Court

248 S.W. 603

STATE v. DENGEL

No. 23429.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

William Dengel was convicted of robbery in the first degree, and he appeals. Reversed and remanded.

Thos. J. Rowe, Jr., and Henry Rowe, both of St. Lewis, for appellant.

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

Statement.

DAVIS, C.

Appellant was convicted in the circuit court of the city of St. Louis on the 16th day of September, 1920, of robbery in the first degree, on a charge of robbing one Roy J. Pysher, on August 18, 1920, of a pocketbook, watch, and a diamond stud, all of the value of $392.

The evidence on behalf of the state tends to show the following:

On the evening of August 18, 1920, in the city of St. Louis, Mo., Roy J. Pysher and his wife drove in their autombile to Twenty-Second and Madison street in the city of St. Louis, Mo. Mr. Pysher went into a soft drink saloon to collect a bill for candy which he had sold the establishment some time before. His wife remained in the machine. When he got out there were three men sitting on chairs in front of the saloon, two of whom, which included the bartender, followed him in. He had been there two or three times before in an effort to collect the bill, and was there during the afternoon of this day, when he was told that he would have to come back in the evening, as the boss was on the night watch and would not be in until then. After entering the saloon on this evening, Pysher asked the bartender if the boss had come in and was informed that he had not. This was from half past 6 to a quarter of 7 p. m. The bartender went behind the bar, and the other man, who came in, remained in front of the bar. The bartender again informed the prosecuting witness that the boss had not arrived and suggested that he wait, for he expected the boss any minute. After some further conversation, the bartender asked who ordered the candy, and Pysher replied, "The boss ordered it." Whereupon the bartender informed him that he was the boss. Pysher asked him why he had not told him that before. The bartender again said that he was the boss, and, if he wanted to collect the bill, he would have to look for the other fellow, as he had just bought the place the Friday before. At this stage of the conversation, Pysher had walked to the rear of the room near the ice box, and the conversation continued about the candy bill. About this time the bartender looked toward the door; a mean came in, and the bartender spoke to him and called him some sort of a nickname, This man, who just came in, was the defendant in this case. He kept coming closer to Pysher, who believed the defendant was expecting him to buy a drink. When within about three feet of Pysher, defendant whipped out a gun and commanded everybody to throw up their hands, pointing the gun at Pysher. The saloon, at that time, was lighted, probably by electricity. Pysher did not put up his hands at once, because he thought it was a joke. The bartender said: "Put up your hands! Put up your hands!" Pysher obeyed. At this juncture the defendant came closer and grabbed Pysher's watch, which was carried in his coat pocket. Pysher struck at his hand and began to show resistance when the defendant commanded the other man, who came in with the bartender and Pysher, to search the s___ of ___ b____ and take his diamond stud and bring it to him (defendant). This other man searched, Pysher, took his purse and keys from his pockets, and laid them on the table. Defendant asked this other man if there was anything in the purse, and he said there was not. Lifter the searching and the taking of the purse, keys, and the stud as aforesaid, defendant ordered the bartender and Pysher into the ice box and directed the other man to close it, which was done. The defendant and this other man then went out together. Pysher could see them from the ice box. The two men went out the Madison street door, proceeding west. The occupants pulled a slat off the ice box window, broke the glass, and called to some one to open the ice box. They were thus released.

The diamond stud was a solitaire, worth about $350. The purse was worth about $2 and contained a $5 and bill, in lawful money of the United States. The watch was valued at $35.

Mrs. Pysher remained in the car for a while and, growing restless, alighted and walked around the machine. She noticed a man who remained outside walking around, but did not pay particular attention to the people passing about. Nor did she notice any one leave before her husband appeared. Pysher was forced to stay in the saloon 20 or 25 minutes.

On the evening of August 19, 1920, about 1:45, a police officer arrested defendant, who was walking leisurely along Twenty-Second street towards Madison. The officer had seen him frequently at the saloon at Twenty-Second and Madison, both day and night, and had the description of the defendant at the time he made the arrest, which had been given him by Pysher. The arresting officer was assisted by his partner.

The evidence on behalf of defendant tends to show the following:

The defendant, William Dengel, was a huckster and worked, with another huckster by the name of O'Connell, all day on the 18th day of August, 1920, selling cantaloupes from a one-horse wagon on Delmar avenue, from Pendleton to Kingshighway. They arrived at the market about 7 o'clock in the morning, bought a load of melons, and left with them about 9 o'clock a. m. At about 2:30 p. m., they stopped for lunch on Kingshighway and then worked over Kingshighway to Easton avenue, where they encountered, about 6 o'clock p. m., an acquaintance named Regan. Regan got on the wagon and rode with them to Grand and Easton avenue, arriving there about 7 o'clock, when and where Regan left them. Defendant and O'Connell met the owner of the wagon at Leffingwell and Cass avenue in a soft drink parlor and there turned in their money and settled up for the day. Defendant and O'Connell then took the horse and wagon to the stable, arriving there about 8 o'clock in the evening, when they separated.

It was shown by the four witnesses, in addition to O'Connell, that defendant was with O'Connell all day selling cantaloupes.

It was also shown by several witnesses that defendant's reputation for honesty in the community where he lived was good.

The defendant testifying in his own behalf stated that he had been a huckster nearly all of his life and had never been convicted of any criminal offense. He denied holding up and robbing Pysher and offered an alibi as a defense.

Opinion.

I. The information is sufficient in substance and form. State v. Flynn, 258 Mo. 211, 167 S. W. 516; State v. Lamb, 141 Mo. 298, 42 S. W. 827. The verdict also is in proper form and responsive to the issues.

II. Defendant urges that the instructions to acquit, offered at the close of the state's and the entire case, should have been given; that the jury disregarded the instructions of the court, and returned the verdict as the result of bias and prejudice.

The prosecuting witness alone identified the defendant. His was the only evidence upon which defendant could possibly have been convicted. At the time of the alleged robbery, the prosecuting witness was talking to the bartender in a soft drink parlor, probably lighted by electricity. There was plenty of light. He states that defendant came in, edged toward him, and, when within three feet, whipped out a revolver and proceeded with the robbery. He does not relate whether the robber was masked or not. He does, however, identify the defendant as the robber.

While the jury Way readily have found for defendant, we may not disturb the verdict where the evidence for the state makes a prima facie case, even though the evidence for the defense is in conflict therewith. State v. Swisher, 186 Mo. 1, loc. cit. 8, 84 S. W. 911. The record does not show bias or prejudice on the part of the jury.

III. Defendant complained of the admission of certain evidence, which, with the objection, reasons, ruling...