State v. Donnell

• Decision Date: 05 February 1945
• Docket Number: 39283
• Citation: State v. Donnell, 184 S.W.2d 1008, 353 Mo. 878 (Mo. 1945)
• Parties: State v. William Bishop Donnell, Appellant
• Court: Missouri Supreme Court

184 S.W.2d 1008

353 Mo. 878

State v. William Bishop Donnell, Appellant

No. 39283

Supreme Court of Missouri

February 5, 1945

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Affirmed.

John L. Sullivan and Joseph M. Walsh for appellant.

(1) The court erred in admitting in evidence over defense objection State's Exhibits 1 and 1-A (automatic pistol and cartridges) for the reason that the record is devoid of any evidence tending to prove that said exhibits were utilized in the perpetration of the robbery charged. (2) The court erred in admitting in evidence letter (State's Exhibit 2) over defense objection for the reason that said letter, even though admittedly written by appellant, was not shown to have been mailed by appellant to or received by Bracey, one of the robbers, and for the further reason that its context is insufficient to connect appellant with the particular robbery of which he was charged, tried and convicted. (3) The court erred in admitting in evidence over defense objection envelope (State's Exhibit 2-A) for the reason that said envelope was in nowise identified upon the trial, the handwriting thereon was not admitted by appellant and no connection was established by the evidence as between said envelope and the letter (State's Exhibit 2). (4) The court erred in failing to direct a verdict of not guilty at appellant's request at the close of the whole case on the grounds that the evidence offered by the State was insufficient to sustain a conviction. (5) The court erred in admitting in evidence over defense objection, State's Exhibit 7 (authenticated copy of judgment and sentence of Criminal Court of Cook County, entered November 3, 1932 sentencing appellant to the Illinois State Penitentiary for a term not to exceed the maximum term fixed by the statute of Illinois for the crime of robbery) and State's Exhibit 8 (Illinois State Penitentiary, description of convict) for the reason that said Exhibit No. 8 clearly shows that appellant had not been discharged from said penitentiary either upon pardon or upon compliance with said sentence as required by the Habitual Criminal Act of the State of Missouri. Secs 4854, 4855, R.S. 1939; State v. Christup, 337 Mo. 776, 85 S.W.2d 1024; State v. York, 142 S.W.2d 91; State v. Austin, 113 Mo. 538, 21 S.W. 31.

Roy McKittrick, Attorney General, and Robt. J. Flanagan, Assistant Attorney General, for respondent.

(1) The court did not err in admitting in evidence State's Exhibits 1 and 1-A (automatic pistol and cartridges) over defendant's objection. 16 C.J., sec. 1225, p. 618; State v. Martin, 162 S.W.2d 847. (2) The court did not err in admitting in evidence the letter written by appellant. (3) The court did not err in admitting in evidence State's Exhibit 2-A, the envelope. (4) The court did not err in failing to direct a verdict of not guilty at appellant's request at the close of the whole case. The evidence offered by the State was sufficient to sustain a conviction. Sec. 4839, R.S. 1939. (5) The court did not err in admitting in evidence over defense objection State's Exhibit 7 (authenticated copy of judgment and sentence of Criminal Court of Cook County) and State's Exhibit 8 (Illinois State Penitentiary Serial Record of Appellant). State v. Manicke, 139 Mo. 545; State v. Bresse, 33 S.W.2d 919; State v. Murphy, 133 S.W.2d 398; State v. Tyler, 159 S.W.2d 777; Secs. 4854, 4855, 4453, R.S. 1939.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

William B. Donnell appeals from a judgment imposing a sentence of fifteen years' imprisonment for robbery in the first degree by means of a dangerous and deadly weapon of the Justin T. Flint Laundry & Dry Cleaning Company of St Louis, Missouri. He questions the submissibility of the State's case and the admissibility of certain evidence.

We think the State made a submissible case. Defendant's position is that there was no evidence warranting a finding that a letter hereinafter mentioned was ever received by one Bracey or one Freeman, the recognized perpetrators of the robbery, and that its contents do not warrant a finding that the instant robbery was referred to.

The robbery occurred about 10:30 or 10:45 a.m. on Wednesday, June 16, 1943, and $ 493 of the Company's money was taken. Preston Bracey and Lester Freeman used a 38 and a 45 caliber revolver, respectively. The robbers were looking for the payroll and one of the girls in the office tried to tell them the payroll had not been delivered by The Guaranty Service. Freeman fired two shots. The robbery was consummated in about 10 minutes. When they departed one robber went down the back stairway and the other went down the front stairway. Defendant left a bundle at the laundry about a half hour prior to the robbery. The robbery was reported to and broadcast by the police. Two officers in a squad car saw a man answering the description of one of the robbers in a taxi. They followed the taxi until the man got out. He looked around, saw the officers immediately behind and threw something inside the taxi. This man, Bracey, was arrested and a revolver was recovered from the taxi and a pocketbook, taken in the robbery, was recovered from Bracey's person. Defendant was picked up on Friday for investigation. His story to the officers follows: He met Freeman on Pendleton and Finney avenues on Tuesday, June 15, 1943, and took him to his girl friend's home, where they both stayed the night of the 15th. He went to work the morning of the 16th and again saw Freeman about 2:30 p.m., when Freeman gave him two grips to take care of and to forward when Freeman got back home. He left the grips with one Coe at 4170 Lindell boulevard. The officers secured the grips and brought Coe to the station for questioning. Coe, janitor at 4170 Lindell boulevard, testified that he was acquainted with defendant; that on Wednesday, the day of the robbery, defendant brought the two grips to him, stating he wanted to leave them until he put his truck up, and he would be by for them that evening. Two days later, Friday, defendant and the police came for the grips. The officers found in one of the grips, among other things, a letter addressed to Preston Bracey and a 45 regular automatic. Defendant admitted to the officers he had written the letter.

This letter and envelope were offered in evidence. The envelope was postmarked special delivery, St. Louis, Missouri, June 7, 1943, 8:30 p.m. The letter was dated June 6, 1943, and carried the salutation: "Dear Kid". It purported to give the addressee the "set-up." It stated the "pick-up" occurred on Mondays between 1 and 3 p.m. and the "delivery" on Wednesdays, between 9 and 11 a.m.; that the writer had been in the place many times. It stated that only one man carried "it" up and down. "The man has a long flight of steps to come up and go down; there is a back stairway out of the office and it leads to the street behind the joint. . . . The best way to play either way is just like this, clip before the man comes to pick up on Mondays or clip after he has delivered on Wednesday. . . . You see you'll have to be on hand to watch when he leaves it on Wednesday, and you'll have to be on hand to see when he comes for it on Mondays. Of the two days Wednesdays (delivery day) [is] the best -- and biggest for about 250 girls works days and about 50 at night; there are about 20 or 25 drivers, the night watchman, the porters, the janitors -- all of them are paid -- on Wednesday. It is all cash. As for the get away. I can't find anyone who has a car that I would want to borrow, so I'd use my truck, that way the get-away would be clean. . . . If you want to clip this Wednesday get in town Wednesday morning and I'll stash you up at my chick house until after the play, we can count it, divide it and you can broom the same afternoon if you want to. Let me know so that I can make arrangements to have my truck on hand for a quick, clean get-away. . . . and bring me a piece of fire, because nothing is to stop us. . . . If you come take a cab and have the driver put you off at Pendleton and Finney. If you can wire me what time you will arrive so that I can be sure to meet you. . . . Be sure to bring me a piece of fire. [Signed] The Saint."

The State might have developed more of the connected facts but the showing...