State v. Deviney
| Decision Date | 22 December 1925 |
| Docket Number | 26616 |
| Citation | 278 S.W. 726 |
| Parties | STATE v. DEVINEY |
| Court | Missouri Supreme Court |
Robert W. Otto, Atty. Gen., and Wm. L. Vandeventer, Asst. Atty Gen., for the State.
Defendant was jointly indicted with John Sheehan and Mack Callan for robbery in the first degree. Upon a separate trial the jury found defendant guilty as charged, and assessed his punishment at imprisonment in the penitentiary for 25 years. He has appealed from the judgment entered on such verdict.
Defendant has not favored us with a brief, and hence we are required to look to the motions for new trial and in arrest of judgment for assignments of error. One of such assignments is that the evidence was insufficient to authorize submission of the case to the jury. This assignment we will take in connection with our statement of facts.
The undisputed evidence is that Cleveland Paul and Frank Simmons were joint owners of and operating a drug store, known as the Orpheum Pharmacy, at the northwest corner of Ninth and Central streets in Kansas City, on June 26, 1924, and prior thereto. At about 12 o'clock that night Paul and two or three employes and four or five customers were in the drug store, when three men, wearing handkerchiefs over the lower portions of their faces, entered the drug store with drawn revolvers, and commanded those present to 'stick 'em up.' The robbers drove Paul and the others behind the prescription case, and proceeded to relieve them of their valuables. One of the robbers covered the victims while another searched them. The third robber proceeded to loot the safe and cash registers. About $ 193 in money was taken from Paul's person. That, with money taken from the safe and cash registers, amounted to about $ 1,100. Others lost smaller amounts. The negro porter, doubtless because he did not present an appearance of sufficient opulence, was unmolested.
The handkerchiefs over the faces of the robbers slipped down at various times, and witnesses identified each one of them. Defendant was known to Paul and others, and they positively identified him as the first of the three robbers to enter the store. He took a leading part in the robbery. Some time was consumed in the search by the robbers. Some of the witnesses said as much as 25 minutes elapsed. In some manner, not disclosed by the record, the police were notified that the 'hold up' was in progress, and three police officers reached the scene while the robbers were still engaged in the robbery. By looking through a window on the east side of the drug store they saw the victims with their hands upraised. One of the robbers was standing guard over them at the time. The officers failed to effect an entrance through the rear of the store. About the time they reached the front of the drug store Callan stepped out into the street and into the arms of the officers, who captured him and left him in charge of one of their number while the other two entered the store. They found the victims behind the prescription case, some of them with their hands still elevated.
The other two robbers must have learned of the arrival of the officers, for they had disappeared. The officers found defendant in a toilet in the rear of the drug store, standing upon the stool and attempting to hold the door shut. Sheehan had retreated to another toilet in the rear of the store, and they found him there. One of the robbers, probably Sheehan, had thrown a revolver upon the floor of the toilet, together with some money. Some of the coin was found in the stool of one of the toilets. Defendant had laid his gun down on the prescription case while he searched the victims, and it was still there when the officers entered the drug store. About $ 193 in money was found upon defendant.
The foregoing statement is founded upon the testimony of the state's witnesses, and was undisputed, except as to the identity of defendant as one of the robbers. He testified that he had known Paul for some time and had had business dealings with him. Defendant had been drinking that evening, and had remained in a nearby drug store until nearly midnight and started to his room. His mother was seriously ill in Cincinnati, Ohio, and he had borrowed about $ 195 to go to her, and had been drinking some on account of worry over her condition. He said he was not so drunk that he did not know what he was doing. It was raining heavily, and he stopped at the Orpheum Pharmacy to get out of the rain and to use the toilet. He entered the drug store about 15 minutes before the robbery, and spoke to Paul as he entered, and then passed around the prescription case and entered the toilet and was still in there when he noticed a commotion in the store, and heard the robbers give the command to 'stick 'em up.' He realized a 'hold up' was in progress, and remained in the toilet for fear he would be robbed or shot. He accounted for holding the door against the officer because he thought he was one of the robbers. He testified that he was not one of the three robbers, and denied that he participated in the robbery in any way. He offered the testimony of one witness upon his reputation for honesty, which evoked from the court an instruction upon good character.
The testimony of three officers in rebuttal was that defendant was not intoxicated, and that he had no smell of liquor upon him when arrested.
I. It is apparent from the foregoing statement that a clear case for the jury was made out by the state's testimony. None of it was disputed, except the identity of defendant as one of the robbers. Two or three of the state's witnesses positively identified defendant as one of them. They said that the handkerchief over defendant's face slipped down two or three times so that they got a full view of his face. Of course, the jury might have believed defendant's story of his presence in the toilet during the robbery and after the arrival of the officers. But the jury doubtless took the common sense view that, when defendant and Sheehan learned of the arrival of the officers, they sought to escape through the rear; that they could not get out that way, and found themselves trapped, and tried to hide in the toilets; that defendant's story about entering the store prior to the robbery to use the toilet was a mere fabrication. Two or three witnesses testified that defendant had not entered the drug store prior to the entrance of the robbers. The evidence was ample to sustain the verdict of the jury.
II. The sufficiency of the indictment was challenged in various ways in the motions for new trial and in arrest of judgment. It was assailed as not charging any offense against defendant and as being vague and uncertain and on the ground that there was a variance between the indictment and the proof. Omitting purely formal parts, the indictment is as follows:
'That Thomas Diviney (Deviney), John Sheehan, and Mack Callan whose Christian names in full are to said grand jurors unknown, late of the county aforesaid, on the 27th day of June, 1924, at the county of Jackson and state of Missouri, did then and there unlawfully and feloniously make an assault in and upon one Cleve Paul and $ 1,100 in good and lawful money of the United States in the aggregate of the value of $ 1,100 the money and personal property of said Cleve Paul, doing business as Orpheum Pharmacy, from the person and against the will of the said Cleve Paul, then and there, by force and...
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