State v. Fouts
| Decision Date | 25 January 1947 |
| Citation | 79 Ohio App. 255,72 N.E.2d 286 |
| Parties | STATE v. FOUTS et al. |
| Court | Ohio Court of Appeals |
Rehearing Denied Feb. 19, 1947.
Mathias H. Heck, Pros. Atty., and Fred M. Kerr and William H. Wolff, Asst. Pros. Attys., all of Dayton, for plaintiff-appellee State of Ohio.
Herbert M. Eikenbary, of Dayton, for defendant-appellant Albert Fouts.
Harold J. Bandy, of East St. Louis, Ill., and George A. Hurley, of Cleveland, for defendant-appellant Virgil Summers.
Albert H. Scharrer, of Dayton, and William Scott Stewart, of Chicago, Ill., for defendant-appellant George C Moran.
This is an appeal on law from the judgment of the Common Pleas Court of Montgomery County, Ohio, wherein the defendants, Albert Fouts, Virgil Summers and George C. Moran were jointly indicted, tried and found guilty of armed robbery.
The gist of the charge is that on June 28, 1946, while armed with guns, they did, unlawfully and wilfully make an assault upon one John Kurpe, Jr., and unlawfully, and with force and violence, and by putting the said John Kurpe, Jr., in fear, did steal and take Ten Thousand Dollars ($10,000) from the said John Kurpe, Jr., being the personal property of Gabor Silas. To this indictment each of the defendants interposed a plea of not guilty and filed notice of alibi. All three defendants were found guilty as charged in the indictment and join in the appeal, and assign as error: (1) Said verdict is contrary to law; (2) said verdict is against the manifest weight of the evidence; (3 and 4) the failure of the trial court to discharge the jury and declare a mistrial; (5) for failing to charge the jury upon the included offense of assault to rob; (6) for all other errors apparent upon the face of the record.
The undisputed facts in this case show that Gabor Silas conducts a tavern at Moraine City, which is located a few miles south of Dayton near Frigidaire Plant No. 2; and that on Fridays he customarily cashed pay-roll checks for workmen at said Plant; that John Kurpe, Jr., was the son-in-law of Gabor Silas, the owner of the tavern and they both kept large sums of money in safe deposit boxes for use in cashing pay-roll checks; that the safe deposit boxes were in the West Side Branch of The Winters National Bank and Trust Company, located at the corner of Third Street and Broadway, Dayton, Ohio; that John Kurpe, Jr., lived with Gabor Silas, on Red Haw Road, which is located in the northwest part of the City of Dayton; that on June 28, 1946, John Kurpe, Jr., left his residence at about ten o'clock A.M. in a Ford coupe; that he drove to the bank and took from his safe deposit box Ten Thousand Dollars ($10,000) in new Ten Dollar ($10) bills, which the teller of the bank exchanged for old Ten Dollar ($10) bills, and delivered them to him in two packs, which he placed in his shirt; that he then drove south on Broadway in the direction of the tavern; that near the outskirts of the city of Dayton, traffic going south on Broadway is directed over Dona Avenue for a distance of several squares, and then back again to Broadway; that as he was proceeding on Dona Avenue he was required to slow down for a truck which was proceeding ahead of him; that at this moment a large Buick sedan overtook him and cut in ahead of him, causing him to turn to the curb and stop; that two men with guns in their hands jumped out of the sedan and covered him; that one robber entered his auto on the driver's side and the other robber entered his auto from the other side and forced Kurpe's head down between his knees and placed a gun against the back of his neck; that one of the robbers drove Kurpe's auto south on Broadway and over Vance Road for quite a distance and then into a lane leading into a woods; that a short distance up the lane the robber stopped the auto, forced Kurpe out of the auto and the two robbers then took from him the Ten Thousand Dollars ($10,000); that the robbers wore white and blue striped caps similar to those worn by railroad workmen, and one of the robbers had on a dungaree jumper; that one robber wore canvas gloves and the other, gloves which looked like leather gloves; that they took off Kurpe's shoes and threw them across a creek and forced Kurpe to lie on the ground face down, whereupon they bound his hands behind him and his feet with adhesive tape and placed adhesive tape across his mouth; that within a few moments Kurpe heard another large auto drive up the lane, make a turn and stop; that he heard a door on said auto open and shut and the auto speed away; that he loosened the tape, and, seeing his own Ford coupe and the large Buick sedan, which he observed was used by the robbers on Dona Avenue, parked in the lane and the robbers gone, he left the scene and notified the police.
The record further shows that Fouts resided at 502 West Fourth Street, Dayton, Ohio; that on the day in question Summers resided in Evansville, Indiana, and Moran in Henderson, Kentucky, which is approximately seven (7) miles from Evansville; that between the date of the robbery and the day the defendants were arrested Summers moved from Evansville to Henderson, Kentucky; that all three defendants were apprehended on July 6, 1946, at their respective residences.
The undisputed evidence shows that on May 5, 1946, Fouts wrote a letter to Summers as follows:
'May 5-46
'10 00 A. M.
'over'
Other side of page:
'Mon'
The evidence shows that Summers was nicknamed 'Doc'; that 'Pop' and 'Old Man' referred to Moran, and he so testified. That both Summers and Moran testified that within a few days after Summers received the letter they came to Dayton and met Fouts, and stayed at the residence of Fouts one day or a part of two days, after which they returned to their homes. The evidence further shows that on Tuesday, June 25th, Summers and Moran drove to Dayton in Summers' Buick sedan; that they stayed at the Fouts residence from Tuesday evening until Friday; that a fourth person, whom Summers and Moran called 'Johnny,' who has not been apprehended, also was in Dayton during the greater portion of this time, and stayed at the Fouts residence.
The evidence shows that at the time of his arrest Fouts denied knowing Summers or Moran or that they had been in Dayton recently; that Summers denied knowing either Fouts or Moran and denied being in Dayton; that Moran refused to make any statement in regard to his being in Dayton or knowing either Fouts or Summers. The evidence is undisputed that Summers used his Buick sedan while he was in Dayton, which bore an Illinois license plate; that his auto had been seen and was well known by agents of the Federal Bureau of Investigation; that on the night of June 25th, or early morning of June 26th, a fourdoor, 1939 Buick sedan, owned by Dr. Anson Hayes of Middletown, was stolen from his garage in Middletown; that the stolen Buick sedan bore an Ohio license, A-31-H; that the three defendants, together with a fourth man, were seen using this stolen Buick sedan, together with Summers' sedan, on the streets of Dayton; that the stolen Buick sedan was the auto which was abandoned by the robbers in the lane near the Ford owned by Kurpe at the time the robbery took place.
The evidence presented by the State clearly shows that all three defendants had been under surveillance by the F. B. I. for quite some time; the F. B. I. agents were watching the residence of Fouts in Dayton, Summers in Evansville and Moran in Henderson, Kentucky. Fifteen agents of the F. B. I. were called as witnesses by the State; some of these agents were able to identify one of the defendants, some two of the defendants and some all three defendants. These agents were acquainted with the make and type of autos used by the defendants and their license numbers.
Only one of the defendants, to-wit, Summers, was identified by Kurpe as one of the two men who actually robbed him; he could not identify either Fouts or Moran as the other robber. It is obvious that four persons were involved in the robbery, the two robbers who jumped into Kurpe's auto and took the money later in the lane where they had parked, one person who drove the stolen Buick which followed the robbers into the lane, which auto was abandoned at the scene of the robbery, and a fourth person, who later drove into the lane in another automobile to pick up the other three participants, and immediately speeded away from the scene of the crime.
What is the evidence which connects Fouts and Moran with this robbery? It was stipulated by counsel that if the cook and housekeeper of Fouts were called they would testify that on Tuesday, June 25th, three men arrived at Fouts' residence; that they remained there until Friday, June 28th that they were known as George, 'Doc,' and 'Johnny.' The agents of the F. B. I. watched the residence of Fouts at different...
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