State v. Emrich

• Decision Date: 14 July 1952
• Docket Number: No. 42509,No. 1,42509,1
• Citation: 250 S.W.2d 718
• Parties: STATE v. EMRICH
• Court: Missouri Supreme Court

Page 718

250 S.W.2d 718

STATE v. EMRICH.

No. 42509.

Supreme Court of Missouri, Division No. 1.

July 14, 1952.

Charles A. Miller, Trenton, Clayton W. Allen, Rock Port, for appellant.

J. E. Taylor, Atty. Gen., E. L. Redman, Asst. Atty. Gen., for respondent.

DALTON, Judge.

Appellant was convicted of robbery in the first degree and was sentenced to a term of seven years in the state penitentiary. Sections 560.120 and 560.135 (all references are to RSMo 1949 and V.A.M.S. unless otherwise specified).

In the first three counts of the information, filed in the circuit court of Gentry county, appellant was charged with murder in the first degree and, in a fourth count with robbery in the first degree, all charges arising out of the same transaction. The cause went on change of venue to Andrew county where, at the close of the state's evidence in chief, the state elected to proceed on the fourth count of the information. The state's evidence tended to show that appellant was an accessory before the fact. See Sec. 556.170.

Mary Hammer, a single person, 82 years of age, lived alone on her 400 acre farm in Gentry county, three miles south of Island City and seven miles south of Stanberry. She was badly crippled by rheumatism and, since about 1941, had walked with difficulty, using a crutch and a cane. During the winter she usually sat in the kitchen of her home, close to the stove, with her overshoes on and her cane and crutch within reach. She paid her bills in cash from a place within reach of her chair, or from containers on the kitchen shelves. She had a few cattle on the farm and she fed them hay from a barn close to the house. She was last seen alive on January 18, 1949, and immediately prior to a six inch snow, which began that day and was followed by several days of sub-zero weather.

On January 22, 1949, the kitchen door of her home was found open and there was snow on the floor several feet back from the door. After a search of the premises her fully clothed body (except for one shoe) was found lying on a ladder close against a manger in the barn. A barn door was open and cattle were going in and out of the barn. The body was partly covered with hay and broken pieces of her crutch were found in the hay near the body. One overshoe with a tennis shoe inside, mates to the shoes she was wearing, was found several feet away. Her hands were bare, but a pair of heavy mittens was found on the kitchen floor underneath the front of the stove. Her cane was close to the righthand side of the chair where she usually sat. Her body was frozen when found, but an examination disclosed two dark bruises about two inches across, one on the left chest over the heart and another three inches to the right, they had been caused before death. A subsequent search of the house was made and a $20 bill was found in a baking powder can and seven $20 bills were found against the east kitchen wall, one of the bills was of large size, old style currency. Some bank and corporation stock certificates and some dividend checks were in the house.

Two murder cases involving much the same facts have previously reached this court. State v. Emrich, 361 Mo. 922, 237 S.W.2d 169; State v. McQuinn, 361 Mo. 631, 235 S.W.2d 396. The testimony of some ten witnesses, as given in the Emrich case, supra, were read in evidence in this case. Fredie Edgar McQuinn, whose conviction of murder in the second degree was affirmed in the last mentioned case, was a witness for the state. His testimony, on the trial of this case, tended to show that he was 36 years of age and that, prior to April 1949, he had lived in Stanberry with his parents for some years. For five years he lived just across the alley from appellant and her children. He visited appellant's home often and kept company with her. McQuinn testified that on a certain afternoon, he was with appellant in Johnny's restaurant in Stanberry and, later he and appellant joined appellant's son Harold (hereinafter referred to as Hoover) at the B. & C. Cafe in Stanberry. It was prior to the death of Charley Clements in an automobile collision north of King City and prior to a trip McQuinn made with Hoover to the Mary Hammer farm. (It was subsequently shown that Clements died on January 22, 1949).

McQuinn and his father were employed by one, Bill McCarty. McQuinn worked in the morning of the day in question, but he was with appellant in the afternoon. While in the B. & C. Cafe, Hoover said to McQuinn and appellant that he knew where there was a lot of old iron down on the Mary Hammer place, if he only had somebody to go with him. Appellant said: 'Yes, she has got a lot of black cattle down there, and a lot of money. * * * My mother knowed her ever since she was twelve years old. My father's brother knowed of her and used to work for her at the sawmill out there, and used to make lumber. I know her ever since I was * * * I know what you and Fred can do, while you and Fredie are looking around there, looking for iron, you look for that money, if you have to tie her up.' It was then agreed that McQuinn and Hoover would go down to the Hammer place and they went there that afternoon.

They left the B. & C. Cafe, walked across the park, down the tracks, went south across the bridge and caught a ride to the Allen corner, where they got out and went south toward Island City on foot. Near the Summer's place they met a car and a car also passed in front of them and went south toward Island City. When they passed the Jim Brown farm, Brown was down at the barn, he waved at them and they waved back. They went on to the Hammer place where McQuinn, who had at one time lived in the immediate vicinity, went to the door, went in, found Mary Hammer and forced her down to the floor. Hoover came in behind him and asked Miss Hammer where she had the money. She pointed into the bedroom, under the bed. At Hoover's direction McQuinn went in and helped him get the money. They got three gallon buckets, shook them up and down and took them back into the kitchen, where Hoover picked up the crutch, hit Miss Hammer three times on the head, jabbed her a couple of times with the crutch, and then the two of them carried her down and placed her in the barn near a manger and put some hay on top of her. Her crutch was then broken over the manger and the pieces thrown on the hay. McQuinn and Hoover then went back to the house and into the kitchen, where they opened the three gallon buckets of money. Both men filled their pockets with money. Some of it was loose and some was tied up with string. Some of it looked like new bills, but some of it was old paper money, some bills were of large size and yellow. There were also some gold coins, pennies and silver dollars. By that time it was getting dark and they left, going east toward the paved highway, where they caught a ride back to Stanberry. On reaching Stanberry, they first visited a pool hall and then headed toward their homes, going along the sidewalk together until they got to the Duffy place, where McQuinn gave all the money he had to Hoover to give to appellant. Two days later McQuinn was over to appellant's home and appellant thanked him for the money. In his presence appellant asked her son Hoover whether they had had to 'kill that old woman.' Hoover didn't answer, but left the room. Appellant then asked McQuinn and he told her he thought they did. She said, 'well, that's too bad.' A month later appellant's son had a trial at Albany and, after that, McQuinn was over at appellant's home, when appellant had a suitcase and money on the bed, and she put the money in the suitcase and closed it up. When Hoover asked her how much it amounted to, she said she didn't know, she hadn't had time to count it. She also said that all three of them had better get out of town 'the way we paid off up at Albany the law is going to suspicion something and going to come down here and ask where we got this money.' She said they had better stay in St. Joseph or go to Corpus Christi, Texas, and cash the old money for something to defend themselves. McQuinn was intending to go with them to Texas, but appellant said he had better not go and she further told him that, if he was picked up, to lay it on anybody. Later, after Hoover had left home, appellant asked McQuinn to go see Columbus McCrary. He did so and then came back and told appellant that Hoover was in St. Joseph but was going to see about a job in Council Bluffs or Omaha. McCrary said he would see appellant the following morning.

Columbus McCrary testified that Hoover wanted to see appellant and that on January 25, 1949, he left Stanberry with Hoover Emrich and Tommy Beal and went to St. Joseph where they saw appellant in the restaurant where she was employed. They had with them some old money from the Mary Hammer house. The following morning police arrested him and took from him a $5 bill of old style currency which was part of the money that Tommy Beal had stuck in his coat pocket the night before. McCrary was released on the 27th and returned to Stanberry. It was on the next evening, Friday night, January 28th, that McQuinn came to his house, asked about Hoover and asked him to see appellant. McCrary saw appellant the next morning at her home in Stanberry and she inquired as to where Tommy Beal and Hoover Emrich had gone. He told her that Hoover had gone to Omaha or Council Bluffs to look for employment. He further testified: 'She said to me, she said, 'Columbus, I have read in the paper where they picked a boy up in St. Joe over old money.' And she said, 'I thought that was Hoover.' I said, 'No, that was me.' I said, 'I am going over to Albany to tell the law that we have went down to Island City and Tommy and Hoover have went in this house and took some money. She said, 'Lord, don't do that; there is a lot more back of this, Columbus, that you don't know about. I think there is murder involved in it. You don't know it, but I know it.' * * * She...