State v. Engberg, 50188

• Decision Date: 09 March 1964
• Docket Number: No. 2,No. 50188,50188,2
• Citation: 376 S.W.2d 150
• Parties: STATE of Missouri, Respondent, v. Roy Lee ENGBERG, alias Walter Johnson, Appellant
• Court: Missouri Supreme Court

Page 150

376 S.W.2d 150

STATE of Missouri, Respondent, v. Roy Lee ENGBERG, alias Walter Johnson, Appellant.

No. 50188.

Supreme Court of Missouri, Division No. 2.

March 9, 1964.

John G. Madden, Jr., Donald E. Willson, and Larence C. Schrader, Kansas City, for appellant.

Thomas F. Eagleton, Atty. Gen., Jefferson City, James P. Jouras, Sp. Asst. Atty. Gen., Kansas City, for respondent.

PRITCHARD, Commissioner.

Defendant was found guilty of the offense of first degree murder by the verdict of a jury and his punishment was assessed by the jury at life imprisonment. After an unavailing Motion for New Trial, defendant has perfected his appeal to this court. Inasmuch as defendant contends that the state failed to make a submissible case, and the evidence fell short of showing the applicability of the submitted felony-murder doctrine (Section 559.010, RSMo 1959, V.A.M.S.), we set forth the facts in some detail.

The bizarre events of the early morning hours of June 8, 1962, and subsequent happenings, began with an armed robbery of a neighborhood tavern located at Ninth and Brighton streets in Kansas City, Missouri. This robbery is the felony relied upon by the state to sustain the conviction of defendant for first degree murder, the homicide having been committed some time later in a north-south alleyway on Thirty-Sixth Street between Harrison and Troost streets.

The facts of the robbery were testified to by witnesses W. F. Rawn and his wife Leora. They owned and operated the business known as the Community Tavern at 5000 East Ninth Street (Ninth and Brighton streets) in Kansas City, Missouri. At about one o'clock in the morning of June 8, 1962, two men came into the tavern, taking seats at opposite ends of the bar. They each had a couple of drinks, and finally one of them, identified by both Mr. and Mrs. Rawn as being the defendant, got up, went over by the telephone near the open front door, reached in his pocket, pulled out a revolver, broke it open and snapped it shut, and said, 'This is a holdup.' All the persons present were herded back to the ladies' room, after which Mrs. Rawn was required by the men to return to the bar and open the safe. Somewhere in the neighborhood of $235.00 in paper currency and change was taken. Mr. Rawn identified State's Exhibit 1 as being the straw hat worn by defendant at the time of the robbery.

On the evening of June 7, 1962, foul employees of the Gas Service Company, William D. Willsey, Ted Francis Gumminger, Robert G. Fetters, and Charles Edward Coleman, had been to a pipe fitters' union meeting at the American Legion Hall at Linwood and Paseo avenues until around midnight and had thereafter gone to the Lorelei Bar in downtown Kansas City where they stayed about an hour. They then proceeded back to the Legion Hall to pick up other automobiles, and when they arrived at Linwood and Charlotte, Willsey, the driver and owner of a 1956 Chevrolet convertible, pulled up at the stop light next to the left side of a 1962 white Galaxie Ford, with the front of the Chevrolet about even with the back of the Ford. There appeared to be only two persons in the Ford, a woman driving and a man sitting close to her. This prompted a remark from one of the men, Ted Francis Gumminger, in the Chevrolet, 'Which one of you is driving?' Whereupon the man in the Ford reached around the driver and shot out the right front headlight of the Chevrolet.

The Ford Galaxie then turned to the right and south on Charlotte. With what appears to be great intrepidity, Willsey and his three companions followed the Ford and found it parked against the curb on Thirty-Fourth Street between Charlotte and Campbell. As they passed the car, one man who was out of it fired two shots. They then heard a gun click. Willsey then stopped and backed up, and the man came over to the side of the Chevrolet, stood right next to it and shot a hole in the right door. At this point intrepidity ceased and Willsey drove off and as he was doing so another shot was fired by the man which went through the back window and out the front windshield.

Gumminger was the only one of these four men who identified defendant as the man who fired the shots. He also got the license number, AW-7097, of the 1962 Ford Galaxie. Three of these four men identified the woman who was driving the Ford as Charlotte Marie Martin when she was brought by the police to the downtown police station with another man, Jack Lamphere. Lamphere had been arrested with Charlotte by officers Deaner and Pinkston, Lamphere having been found by the officers lying down on the rear floor-board of the Ford.

The deceased, George Wilber, a special officer of the Kansas City Police Department, was a partner of the husband of witness Ann Smith in the Alarm Engineering Company. Wilber was on duty the morning of June 8th, and Mrs. Smith received a radio dispatch from him at about 1:42 A.M., whereupon she called the police.

William Phillip Nichols lived in the rear apartment at 3606 Troost Avenue. He was awakened by what sounded like two gunshots in the alleyway, then he heard voices say, 'Did you get him?' and 'Hell, yes. Let's get out of here.' He then heard tires squeal and an engine roar.

Airman Duane E. Finch was parked facing south in his car with his girl friend in front of a garage next to the northsouth alleyway at 3601 Harrison. The time was between 1:15 and 1:45 AM., and he had been there about five to ten minutes when two automobiles pulled into the alleyway, a white Ford first, which was immediately followed by a green Ford (identified as deceased's). He heard someone shout 'halt' and there were three immediate shots. About five minutes later he saw a man come walking down on the north side of Thirty-Sixth Street. This man had a revolver in his hand. Finch saw a red light flashing and the man hid in the bushes, and after a police car went by, this man came across the street. There were street lights in the area and Finch identified the man as defendant.

Robert J. Kelly, Jr., a Detective-Lieutenant, arrived at the homicide scene at approximately 2:30 A.M., and observed the body of deceased, George Wilber, lying face down at the left rear of a 1960 blue (green?) Ford. There was a pencil (State's Exhibit 21) which looked as though it had been broken lying eight feet north of the rear of the car, and a matching pen was found in the shirt pocket of deceased. When he examined the body, there appeared to be an entrance gunshot wound in the center of the spine, and another wound which came out directly behind the left shirt pocket. He found no powder burns on the shirt, and he gave his opinion that a .38 caliber pistol would have to be farther away than a foot to leave no powder burns.

Detective Robert Cool also observed the body of deceased, and found an unfired .44 caliber Smith & Wesson magnum revolver, fully loaded and cocked lying near the right hand underneath the body of the victim.

Police officers Edward Deaner and Willie Pinkston were partners in a patrol car in the district. At 1:33 A.M., being then southbound from Armour Boulevard (Thirty-Fifth Street) on Forest, they received a call in regard to the shootings by the occupants of a white 1962 Ford at the occupants of a white and blue Chevrolet. Deaner and Pinkston then came west on Thirty-Sixth Street, turned north on Troost, and in the 3500 block on Troost they picked up a 1962 white Ford with what appeared to be two occupants--one female who was driving and a male passenger. Deaner, who was driving, turned his headlights on bright and turned on the red light and siren, and when the traffic light changed at Armour and Troost, the white car turned slowly east and then back south on Forest, with the patrol car following closely. The white Ford stopped at approximately 3510 Forest. Deaner stepped out of his car and turned on his spotlight. He drew his service revolver and laid his arm over the top of the police car pointing in the direction of the passenger in the Ford. The passenger jumped out with a blue steel revolver in his hand, glanced quickly back in the direction of the officers, immediately turned and started running down the sidewalk to the south. Deaner fired a shot into the air, called 'halt' several times, and then fired at the suspect. Pinkston, who got out of the patrol car at the same time the fleeing suspect got out of the Ford, also fired twice at him. Deaner identified defendant as the person who was in and who ran from the stopped Ford.

Deaner then walked up beside the car and saw someone else (a third person) lying on the back floorboard. He arrested the two and turned them over to officer Billy L. Trollope, who took them to the police station. The woman first said her name was Leslie Stiles, but later said her name was Charlotte Martin. The other man who was arrested was Jack Lamphere.

Robert W. Wark, a Sergeant with the Police Department laboratory, was in charge of the field crew at the scene of the homicide. He arrived there at 2:38 A.M., and took photographs of the scene and of the 1962 white Ford Galaxie, some of which show its license number, AW-7097, of the state of Colorado. State's Exhibit No. 18 shows the interior of the Ford, with money on the rear floorboard. Wark also found deceased's pencil, State's Exhibit No. 21, lying on the ground, and he picked up from next to deceased's body State's Exhibit No. 20, which is a .38 caliber slug upon which he placed his initials. Wark also identified State's Exhibit No. 22, which is a .38 caliber slug handed to him by officer Pinkston who testified he took it from the mechanic at the Police Garage who in his presence removed it from the right door of Willsey's 1956 Chevrolet convertible. State's Exhibit No. 1, a straw hat, was also in the Ford, this being identified by witness Mr. Rawn as having been worn by defendant at the time of the tavern robbery.

James F. Campbell took charge of the money which was taken from the Ford. He...