State v. Drew

• Citation: 300 S.W. 473
• Decision Date: 12 December 1927
• Docket Number: No. 28221.,28221.
• Parties: STATE v. DREW.
• Court: United States State Supreme Court of Missouri

300 S.W. 473

STATE v. DREW.

No. 28221.

Supreme Court of Missouri, Division No. 2.

December 12, 1927.

Appeal from Circuit Court, Ripley County; E. M. Dearing, Judge.

Harry Drew was convicted of robbery in the first degree, and he appeals. Affirmed.

Cope & Tedrick and Garry H. Yount, all of Poplar Bluff, for appellant.

North T. Gentry, Atty. Gen., and L. Cunningham, Asst. Atty. Gen., for the State.

BLAIR, J.

Appellant was jointly charged with George Elliott and Dewey Hahn with the crime of robbery in the first degree. After a severance was taken, the regular judge was disqualified by appellant, and Hon. E. M. Dearing, the regular judge of the Twenty-First judicial circuit, was called to try the case as special judge. Later a change of venue from Butler county was granted to appellant on the ground of alleged prejudice against him of the inhabitants of Butler county, and the venue was changed to Ripley county. There the jury found appellant guilty as charged, and assessed his punishment at imprisonment in the State Penitentiary for five years. The appeal is from the judgment entered on such verdict.

The sole ground urged here for reversal of the judgment is that there is no substantial evidence to sustain the verdict. This is practically the only assignment in the motion for new trial which measures up to the requirements of section 4079, Laws of 1925, p. 198, specifying what shall be contained in the motion for new trial, and this, perhaps, explains the failure to brief and argue in this court other assignments of error attempted to be raised in the motion for new trial.

The evidence of appellant's guilt was purely circumstantial. The state's evidence tended to show the following facts: E. M. Davidson operated a garage and filling station at Willby Station about ten miles north of Poplar Bluff. At about 8:10 p. m., January 8, 1925, a Ford touring car was driven in front of the filling station, and the horn signal was sounded. Davidson had gone to bed, but arose, and went to attend to the call. On being informed that oil was wanted, he produced two quart bottles, and emptied one of them in the engine, and inserted the second one in the oil pipe, and then placed the empty bottle on the running board. The occupants of the car then asked for gasoline. The side curtains were on the car. As Davidson removed the cap from the gas tank to see whether any gas was needed, some one in the car stuck a gun outside, and commanded him to put up his hands. One of the men in the car then got out, and came around the car with a club, and relieved Davidson of about $8 in money, consisting of coins from one-cent pieces to 50-cent pieces. The man with the club then jumped in the car, and it was driven rapidly away toward Poplar Bluff. Davidson had noticed that there w as no fan belt on the engine.

Davidson had turned his flash-light into the car, and had recognized Dewey Hahn, who was thereafter, and before appellant's trial, tried and convicted under the same information. That conviction was approved by this court in State v. Hahn, 289 S. W. 845.

The man who got out of the car and relieved Davidson of his money was "a low, heavy-set fellow." He had some sort of a rag over his face. Davidson was acquainted with the appellant, and said appellant's size and general makeup corresponded with that of the man who took his money. After the robbers left, Davidson got out his own automobile, and followed them toward Poplar Bluff. He picked up Deputy Sheriff Lucian Keel on the way. As they reached Poplar Bluff, they almost caught up with a car answering the description of the robbers' car, but lost sight of it when the car turned off at a street intersection.

Later in the evening a Ford car was found which answered the description of the car carrying the robbers. It had its curtains in place. It had no fan belt on the engine. There was an empty oil bottle protruding from the oil pipe of the engine. There was a fresh oil mark on the running board which indicated that an oil bottle had recently been set there, and last, but by no means least, the cap was found to be off the gasoline tank. The car belonged to Dewey Hahn.

Hahn and Elliott were arrested the same night. Appellant was arrested the next...