State v. Gaines

Decision Date12 October 1953
Docket NumberNo. 43618,No. 1,43618,1
Citation261 S.W.2d 119
CourtMissouri Supreme Court

Emanuel Williams, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Hugh P. Williamson and W. Don Kennedy, Asst. Attys. Gen., for respondent.

DALTON, Judge.

Defendant was convicted of robbery in the first degree under the habitual criminal act and his punishment assessed at imprisonment in the state penitentiary for the remainder of his natural life. Sections 560.120 and 556.280 RSMo 1949, V.A.M.S. He has appealed.

Appellant has filed no brief in this court and we shall examine the several assignments of error in the motion for a new trial to determine the proper disposition of the cause. It is first contended that the evidence is insufficient to sustain the conviction. This assignment requires a review of the state's evidence.

The evidence tended to show that Sam Geller, the prosecuting witness, resided at 1911 North Florissant Avenue in the City of St. Louis and was employed at 2011 Market Street. He owned real estate, collected rents and kept the money on hand at home to pay notes and bills. On Saturday morning, January 26, 1952, Geller had on hand a total of $4,840 in currency that belonged to him, and since his wife was not to remain at home that day, he (for the first time) put the money in his pocket and took it with him when he left for work. He counted the money at home before he left, it was all there, and he had it with him all day while at work. He had 40 one hundred dollar bills, 8 fifties, 30 tens and 20 fives, all wrapped in one package, which he placed in his right side pocket. He also had on his person $40 additional money and some change. About 7:30 p.m. he left his place of work and started to walk home. As he crossed 17th street, going east, on the north side of Cole Street he saw a colored man in a gray suit walking east on the south side of the same street immediately opposite him. The man was wearing a beige overcoat and a brown hat. At 16th Street the man crossed to the north side of Cole Street and followed five or six feet behind. Geller turned around and looked directly at the man's face and became suspicious and walked faster and faster. On four separate occasions, Geller had a good view of the man's face by the light of the street lights. He had never seen the man before. At 15th Street Geller began to run and ran north on 15th to Carr Street, but the man followed close behind him and, near 15th and Biddle, the man came around and struck him in the face 'with an iron' or some metal and broke his jaw. Geller fell and became unconscious. When he regained consciousness, he was leaning against a building, 30 or 40 feet from the street, in an alley between buildings. His head had been injured, blood was dripping from his face, his jaw was broken and all of his money was gone. After he reached his home he was taken to the police station where he reported the robbery and he was then taken to the hospital for treatment.

On the following Saturday, at police headquarters, Geller identified appellant and said 'This is the man.' On the next day, Sunday, Geller was present at Central District headquarters when the police questioned appellant. Appellant was asked if he knew 'this fellow' (Geller) and appellant said that he did. Geller related in appellant's presence what had happened and that appellant had robbed him of his money. Appellant replied that he only got $1,600; and that he had pushed Geller down and put his hand in Geller's back pocket and pulled out the money. Geller told him 'It wasn't so * * * he got it out of my hip pocket.' Appellant also said he robbed Geller in front of 1655 or 1657 Cole, but Geller said appellant was wrong, it was in front of 1209 North 15th. Geller saw appellant at headquarters the following Sunday and appellant admitted that he got $4,800. Geller testified positively that appellant was the man that assaulted him and took his money. Geller was cross-examined at length with reference to his ability to recognize appellant as the robber and with reference to his report to the police after the robbery concerning the age, height, weight and appearance of the robber.

Police officers testified that the arrested appellant about four blocks from 15th and Biddle on the night of February 1, 1952 and later questioned him about the robbery of Sam Geller. The officers who made the arrest testified that they did not arrest appellant on the basis of the description of the robber as furnished the police by Geller, but upon the basis of other information; and that the arrest was made for investigation in this case. These officers testified that appellant at first denied the robbery, but later said that 'early in the evening of January 26th he had been drinking, and he was standing on the southeast corner of 17th and Cole, and he observed Sam Geller walking east on Cole, approximately in front of 1655 or 1657 Cole. He walked over behind him, and grabbed him by the hips, and shoved him to the lawn, and then took a billfold from his right rear pocket. He said he took the money out, and threw the billfold on the lawn, and then walked out to 17th and Franklin, then east on Franklin, and to the Illinois Terminal, and he boarded a trolley and went to Brooklyn, Illinois.' He then stated that he went to a tavern over there, and counted the money in a lavatory, and counted approximately $1600. He spent the night drinking over there and gambling. From Brooklyn, Illinois he went to Chicago and purchased an automobile, a '49 Mercury car for $1,199 and drove it back to St. Louis on Monday evening. He stated that he paid for the automobile 'in 10's and 20's.'

Before permitting the several witnesses to tell what appellant had said about the robbery, the court heard evidence outside of the hearing of the jury with reference to whether or not appellant's statements were voluntary. The state's evidence tended to show that the statements were wholly voluntary. At the hearing before the court, appellant testified he was kicked and got a whipping before the questioning, but that he at no time made any confession or statements to the police or to anyone else implicating himself in connection with the charge against him. Appellant further testified that he was booked for investigation but not told what for; that at the 'show up' on Saturday morning he heard some one say 'I know him by his walk'; and 'that, when he (appellant) was asked how he had gotten the automobile, he said he 'had thirteen hundred dollars for the job at home saved.'

The state's evidence before the jury further tended to show that, after appellant insisted that he had paid for the automobile in $10 and $20 bills and had never seen a $100 bill, he told the police that he had purchased the automobile in Berwyn, Illinois. He also exhibited the bill of sale showing that the purchase was made from the Hi Joe Motor Sales Company at that place on January 28, 1952. The police, thereafter, contacted the Hi Joe Motor Sales Company through the police department at Berwyn to determine the denominations of the currency used by appellant in making the purchase. There was no testimony concerning the information obtained. Thereafter, the police questioned appellant with reference to the information they had obtained. Appellant then stated that he had obtained $4,800 in the robbery of Sam Geller instead of $1,600. He said that he lost about $2,300 'gambling and drinking on the East side over in Illinois'; that he had spent approximately $1,200 for the automobile; and that he bought $750 worth of household goods, clothing and jewelry for his girl friend and himself. He further told the officers where they could recover $350. He said he had given his sister, Ella Reed Dunn, 1010 Liberty Street, East St. Louis, Illinois, three $100 bills to keep for him. At that address Mrs. Dunn's husband delivered to them two $100 bills which he had under the rug in the front of his car. The police then went from the Dunn residence to the residence of Mary Arnell, appellant's girl friend, and she turned over to them a $100 bill. With Mary Arnell they then went to the residence of Ida Gaines, appellant's mother, where Mrs. Gaines turned over $50 in currency. There was evidence that this money was picked up at the direction of appellant; and that the direction or order to do so was given in the presence of appellant's mother and sister and his girl friends, Mary Arnell and Norma Lee Washburn.

As stated, there was evidence that appellant said he had paid out $750 on bills at various stores and for clothing, household goods and jewelry purchased. The police obtained possession of some of the bills for such goods purchased between January 28th and February 1st, and appellant said the purchases were paid for with money obtained in the robbery. On February 6, 1952, at appellant's direction, the police went to his home at 2033a Franklin, where he lived with Norma Lee Washburn. They recovered numerous articles of clothing, a radio, an oil stove and various items of household goods. The articles were exhibited to appellant and he said that the several articles which had been recovered were purchased with the money he had taken from Sam Geller. The state's evidence showed seven prior convictions for felonies, to wit, six convictions for larceny from the person and one for carrying a concealed weapon, and the evidence showed that appellant had been discharged upon lawful compliance with the sentence in each case.

Appellant did not take the stand in his own defense nor offer the testimony of any witness, but contented himself with offering the prosecuting witness' statement to the police on the night of the robbery as shown by the police records, as follows: 'Geller reported to special officers Vernaci and Fulhorst that about 7:56 p.m. he was walking north on the west side of North Fifteenth Street when in front of about 1209 North Fifteenth...

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