State v. Glon

• Decision Date: 11 June 1923
• Docket Number: No. 24179.,24179.
• Citation: 253 S.W. 364
• Parties: STATE v. GLON
• Court: Missouri Supreme Court

253 S.W. 364

STATE v. GLON

No. 24179.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Rehearing Denied July 14, 1923.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

Wm. Glon was convicted of robbery in the first degree, and he appeals. Affirmed.

Thos. J. Rowe, Jr., and Henry Rowe, both of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen. (Ellison A. Poulton, of Canton, of counsel), for the State.

WHITE, J.

The appeal is from a judgment upon a conviction of robbery in the first degree wherein the appellant's punishment was assessed at imprisonment in the penitentiary for ten years.

The indictment charged the appellant William Glon, Frank Glon, Bernard Becker, and Frank Harrington with assaulting and robbing George Lautenschlager of $3,010 in money on the 14th day of February, 1921. The case was nollied as to Frank Harrington, and he appeared as a witness for the state. Severance was granted Becker; Frank Glon and William Glon were tried; Frank Glon acquitted and William Glon found guilty.

George Lautenschlager was cashier of the Moll Grocery Company. About 10:30 a. m. he took the money of the company for the purpose of depositing it in the Franklin Bank. While on Franklin avenue, a short distance from Morgan street, he was struck from behind and fell unconscious. When he recovered consciousness the money and checks which he carried were gone and were never recovered. Frank Harrington testified that he had a meeting with Becker and William Glon about three days before the robbery, and William Glon made this proposition to him:

"If you can get a machine, I will tell you where we can get a lot of dough."

The witness stole a Hudson machine and met William Glen and Becker, when they decided to wait until the Monday following to commit the robbery. Harrington took his car to a paint shop. On Monday, with William Glon and Becker he went to the paint shop and got it. Witness drove the machine to the appointed place where William Glon arranged for a signal indicating the man who was carrying a package under his arm as paymaster for Moll Grocery Company. He moved the car near to a point where the assault was committed and waited until Glon and Becker came up with the loot. They then drove north on Broadway; William Glen got out at Cass avenue, later Becker got out, and witness continued to drive until his car crashed into the curb and broke a wheel. Of the proceeds of the enterprise Harrington got $1,010, Becker and William Glon received each $303, and Frank Glon $101. The checks obtained were burned.

I. Appellant at the outset objected to the testimony of Harrington, whose case had just been nollied, on the ground that his name was not indorsed upon the indictment as a witness for the state. The appellant presented no motion to quash the indictment. It does not appear that counsel for the state intended any surprise or to take undue advantage of the defendant in respect to it, nor that appellant suffered any disadvantage by reason of it. There was no error in allowing the witness to testify. State v. Lee, 288 Mo. loc. cit. 50, 231 S. W. 619; State v. Stegner, 276 Mo. loc. cit. 438, 207 S. W. 826; State v. Floyd Hall (Mo. Sup.) 231 S. W. 1001, citing Stegner Case and State v. Wilson, 223 Mo. loc. cit. 187, 122 S. W. 671. The appellant orally asked the court to continue the case and the request was overruled. This was a matter largely within the discretion of the trial court, and the record does not show that its discretion was abused in permitting the witness to testify.

II. Appellant, however, asserts that a case was not made out against the defendant because there was failure to show a conspiracy. No witness actually saw William Glen rob the messenger, and, of the number who were included in it, there is no evidence as to which one of them actually perpetrated the act of assaulting the messenger and taking the money from him. The evidence shows that William Glon proposed to Harrington that Harrington steal a car and join Glon and Becker in the perpetration of the robbery. Circumstances show that they acted together in arranging the time and place of perpetrating the deed; that they escaped together in the car driven by Harrington, and afterwards divided the money. They not only acted together but actually made the arrangement to act in concert. A case showing the conspiracy was fully made out by the evidence.

II. M. Callahan, police officer, testified that, when William Glon, Frank Glon and Harrington were at police headquarters, Harrington told all about the robbery and gave all the details, in the presence of William Glon. That statement was objected to and exception saved to its admission. The rule is that an accusatory statement made to or in the presence of a person charged with a crime is sometimes admitted, when, under the circumstances, the silence of the accused would be an admission of the truth of the statement; but where the accused denies, without qualification, his alleged statement, the statement is not admissible. State v. Kelleher, 201 Mo. 636, 100 S. W. 470; State v. Levitt, 278 Mo. loc. cit. 376, 213 S. W. 108. This particularly applies where the statement is made when ...