State v. Garton, 49570

• Decision Date: 09 September 1963
• Docket Number: No. 1,No. 49570,49570,1
• Parties: STATE of Missouri, Respondent, v. Charles W. GARTON, Appellant
• Court: Missouri Supreme Court

Page 283

371 S.W.2d 283

STATE of Missouri, Respondent, v. Charles W. GARTON, Appellant.

No. 49570.

Supreme Court of Missouri, Division No. 1.

Sept. 9, 1963.

Rehearing Denied Oct. 14, 1963.

No attorney for appellant.

Thomas F. Eagleton, Atty. Gen., Jefferson City, Theodore C. Beckett, Sp. Asst. Atty. Gen., Kansas City, for respondent.

DALTON, Presiding Judge.

On March 16, 1962, an amended information was filed in the Circuit Court of Platte County, Missouri, charging defendant Garton, under the Habitual Criminal Act, with the crime of robbery in the first degree by means of a dangerous and deadly weapon. See. Secs. 560.120 and 560.135 RSMo 1959, V.A.M.S. and Sec. 556.280 RSMo, as amended Laws 1959, S.B. No. 117, Sec. 1, V.A.M.S. The cause was transferred to Andrew County for trial. Defendant appeared in open court with counsel of his own choosing and waived formal arraignment and entered a plea of 'not guilty.' The amended information charged two prior felony convictions, to wit, Grand Larceny and Assault With Intent to Commit Murder and the court so found. After the jury returned a verdict of guilty, as charged in the amended information, the court assessed defendant's punishment at life imprisonment in the Missouri State Penitentiary. A motion for a new trial was filed and overruled and defendant was permitted to appeal as a poor person and a free transcript has been provided.

We shall examine the assignments of error in defendant's motion for a new trial. Supreme Court Rule 28.02, V.A.M.R.

The charge in question was based upon defendant's alleged participation, as a principal, along with Joe Andrews, in the robbery of Mike Jarowitz, the Cashier of the Farley State Bank of Farley, Platte County, Missouri, on September 1, 1961, when some $13,613 in money, the property of the Farley State Bank, in the custody of Jarowitz as cashier, was taken and carried away. Jack Streater, a witness for the State, participated in the robbery by driving the get-away car and sharing equally in the proceeds of the robbery.

The State's evidence tended to show that on said date, at about a quarter after nine in the morning, a 1960 white Pontiac automobile was seen to approach the Farley State Bank in Farley, Missouri, at a slow rate of speed. Just as the automobile got to a point in front of the bank, two individuals, later identified as defendant and Joe Andrews, jumped out of the car and came into the bank. Defendant was carrying a canvas bag and both he and Andrews had a type of make-up on their faces and each wore gloves, a dark hat, dark glasses and a khaki shirt and trousers. Both men displayed snub-nosed revolvers and one of them advised the bank employees that, 'This is a holdup, everybody do as we say and nobody will get hurt.' Jarowitz and other employees were ordered into the bank vault. Defendant accompanied Jarowitz into the bank vault and cautioned him not to reach for a gun. He also ordered Jarowitz to place the bank's currency in the canvas bag, which was done. Defendant took the currency and a sack containing 645 silver dollars with him. The two robbers left the bank together and entered the white Pontiac, which Jack Streater held in readiness to provide a way of escape.

Jarowitz identified defendant as one of the robbers and Joe Andrews as the other. Defendant was also identified as one of the robbers by June Graham, a bookkeeper, and by Laverne Taulbee, a secretary at the bank.

After defendant and Andrews were picked up, Streater drove the Pontiac out to a place about two miles away where Streater's DeSoto had been parked. All then abandoned the Pontiac and entered Streater's DeSoto and he drove on to a place where a metal box containing soft drinks had previously been placed near a certain cottonwood tree. When the robbers left Streater's car, they took the proceeds of the robbery with them and went into a wooded area. Streater then went to his farm home and took his wife to her work in Kansas City and he went on to his place of employment. After work that evening he returned to his farm and later that night he returned to the cottonwood tree, picked up defendant and Andrews and took them into Kansas City. The robbers told Streater that they had obtained thirteen thousand, six or eight hundred dollars. They split up the currency while they were in the woods, and left some 600 dollars of silver in a hollow tree. Defendant was given his full share, but Andrews and Streater were to divide later. Streater was to get one-third, as he subsequently did when the money was divided at an apartment in Kansas City. Streater then took $3,000 of Andrews' share back to the farm that night. The next day Andrews came out and got $1,000 of the money and buried or hid the balance. After the robbery, Streater continued working at his job at the Butternut Bakery for about three weeks and then he took a trip to Bennett Spring and on to Miami, Oklahoma, before he returned to his rented farm some fifteen miles from Farley, Missouri.

On September 30, 1961, Streater went to Kansas City to get a couple of sacks of coal. About 5 p. m. he saw two police cars parked underneath a bridge carrying an expressway over Southwest Boulevard. He pulled up to ask them where he could find a coalyard. He had a hunting knife on his belt and the officers, in some manner, saw the knife and, after telling him where a coalyard was located, they arrested him, took the knife and searched the car, wherein they found $2,530 of the bank's currency in a paper sack in the glove compartment. Streater told them the money was from gambling, working and savings. Some three weeks later, he admitted his part in the robbery and took serveral officers to the cottonwood tree and wooded area referred to. The officers searched for the hollow tree and found it and an olive-colored bag. The bag contained 637 silver dollars, a sawed-off shotgun and a snub-nosed .38. The shotgun, with the barrel and stock sawed off, appeared to be similar to the shotgun that had been left in the white Pontiac while the pobbery took place. Streater indentified defendant at the trial as one of the men with whom he had cooperated in the robbery at the Farley State Bank on September 1, 1961.

The evidence further tended to show that, prior to August, 1961, Streater resided at 10 East 32nd Terrace in Kansas City, Missouri, near where Andrews and the mother of Streater's wife resided. Streater subsequently rented a farm on Route 2, Parkville, and took possession of the house and began repairs sometime in August. The bank robbery was first mentioned to him by Andrews about the middle of August. The conversations began at Streater's apartment in Kansas City and were later carried on in Andrews' apartment. Andrews had visited the Farley State Bank about the middle of August and had asked to see one of the Farleys, who was not present. The robbery was first scheduled for the 25th of August and Streater was to receive a minimum of $1,000 or more depending on what they got. Defendant was present when the plans were discussed and he told Streater 'there wouldn't be anything to it.' Andrews said the robbery had been planned about four months and that Streater didn't need to be within ten miles of the bank when it was robbed, since Streater, using his own car, was just to pick up defendant and Andrews at a designated spot. Later, defendant and Andrews said they would get another car and let Streater know when they were ready to proceed. When they did notify him they said they wanted to use Streater's car to obtain a get-away car, because Andrews' car was an old '48 Nash and they didn't want to drive it; however, they got a car themselves, a white 1960 Pontiac. It was taken from the Plaza in Dansas City to Streater's farm on Tuesday or Wednesday before the 25th of August. On the 25th, Streater picked up defendant and Andrews at Andrews' apartment in Kansas City, about 10:30 a. m., and brought them out to Streater's farm. They then applied 'a pancake make-up' to their faces. A place was agreed upon where Streater was to wait for them and pick them up in his DeSoto when they returned from the bank.

Defendant and Andrews left Streater's farm about 4:30 p. m., in the white Pontiac, each carrying a .38 snub-nosed revolver. At about 4:45 p. m. Streater went over to the designated spot to wait. When they returned they told him that it looked like all the town was there and they didn't think it was 'a good deal' to proceed. Both cars were then driven back to the farm and the Pontiac was parked behind a garage in a bunch of weeds. Later, Streater took defendant and Andrews back to Kansas City in his DeSoto. Defendant was angry because the robbery didn't 'come off,' since he had come in from Hobbs, New Mexico and had spent considerable money. Defendant talked of leaving Kansas City, but Andrews wanted him to stay and try again the following Monday. Defendant said he would have to call his wife 'and find out.' On Wednesday or Thursday of the following week, between the 25th and the 1st, Streater saw the defendant in Andrews' apartment in Kansas City and defendant and Andrews both advised him that the robbery was set for Friday morning, September 1. It was decided that the robbery would take place as soon as the bank opened instead of waiting until evening. In the meantime Andrews came to the farm and moved the Pontiac down near a certain bridge and Streater went along in his DeSoto to bring Andrews back to the farm. The Pontiac was parked about two miles from Farley. Andrews then went back to Kansas City in his own car and, at 7 o'clock the following morning, September 1, 1961, Streater went into Kansas City and picked up defendant and Andrews at Andrews' apartment, where he found them partially 'made-up' with their pancake make-up, and spraying their hair. They then 'headed for' the parked Pontiac in Streater's DeSoto. When they reached the place where the Pontiac was located, they parked the DeSoto...