State v. Jaeger, 51010

• Decision Date: 11 October 1965
• Docket Number: No. 51010,No. 2,51010,2
• Citation: 394 S.W.2d 347
• Parties: STATE of Missouri, Respondent, v. Michael Henry JAEGER, Appellant
• Court: Missouri Supreme Court

Page 347

394 S.W.2d 347

STATE of Missouri, Respondent, v. Michael Henry JAEGER, Appellant.

No. 51010.

Supreme Court of Missouri, Division No. 2.

Oct. 11, 1965.

Norman H. Anderson, Atty. Gen., Brick P. Storts, III, Asst. Atty. Gen., Jefferson City, for respondent.

Thomas W. Wehrle, Clayton, for appellant.

BARRETT, Commissioner.

Robert W. Stephens, Daniel E. Grindstaff and Michael H. ('Big Mike') Jaeger, all with prior felony records, were jointly charged with robbery with a dangerous weapon. After a severance and upon an information in lieu of an indictment, a jury found the appellant Jaeger guilty of the principal offense and the court, after a stipulation by the parties as to the facts and a finding of two prior felony convictions, sentenced the appellant to imprisonment for a term of years, just how many years being one of the questions involved upon the appeal. As to the substantive crime the information appropriately charged that Stephens, Grindstaff and Jaeger 'feloniously and wilfully and by means of a dangerous and deadly weapon, to-wit: a pistol, did rob, steal, take and carry away, $50.00 lawful currency of the United States, one ladies Autumn-haze mink coat, one ladies dinner ring, platinum mounting and various other items of women's jewelry, all of the total value of $2,700.00, the property of Grace Piccione, by then and there putting the said Grace Piccione in fear * * *.' RSMo 1959, Secs. 560.120, 560.135, V.A.M.S.; State v. Foster, Mo., 249 S.W.2d 371.

While Stephens, Grindstaff and Jaeger were jointly charged, at least four people had some active part in the actual robbery of Mrs. Piccione and at least two other people had some knowledge of the events leading up to the conspiracy to rob and afterwards were told some of the facts by one or more of the robbers. The appellant Jaeger, age 35, was living in an apartment on McPherson with Alan Braun, age 18, and Alan's girl friend, 'a girl named Bobby,' and their immediate concern, since 'we was something like partners,' was money with which to pay the next month's rent. Thomas Allen Jones, age 25, admittedly guilty of 'approximately 9 or 10' burglaries, 'fingered' the Piccione robbery and was the fourth participant although not jointly charged with the three other robbers. Jones, Braun and Braun's girl friend Bobby, age 20, all testified for the state and the consequence is that aside from the testimony of the police, Mrs. Piccione and her housekeeper, the jury and the court had the unusual advantage of the full details of a robbery from its planning to its execution and exposure and finally the arrest of all participants.

In brief the circumstances were that in the summer, prior to October 2, 1963, 'a fellow by the name of Tommie George' pointed out Mrs. Piccione in one of her theatres (she owned the Apollo and the Varsity on Delmar) to Jones and told him that she carried large sums of money home, usually 'had about $30,000 in her house,' that she was a widow and lived alone with a housekeeper at 6915 Delmar. About August first Jones, to make certain of the location of the residence, waited until Mrs. Piccione closed one of her theatres and followed her pink Continental Lincoln automobile to her home. On October 1, 1963, between 6:30 and 7:30 Jones, Alan Braun and Bobby, Stephens, Grindstaff and Jaeger assembled at their usual haunt the Driftwood Tavern on North Kingshighway just off Natural Bridge Road and Jones told them about Mrs. Piccione: 'What I knew about it, where she lived and that she owned the theatres, and that she was supposed to bring money home with her, and that she was supposed to sleep on the second floor.'

It is not necessary to narrate their movements in accurate detail or to describe all the circumstances of the robbery. Grindstaff, Stephens, Jaeger and Jones, after having previously 'cased' the house, left the Driftwood Tavern sometime after mindnight and drove to Mrs. Piccione's residence in Grindstaff's truck. 'Jaeger handed Grindstaff a pistol,' the pistol employed in beating and robbing Mrs. Piccione, Jones returned to the tavern, and Grinstaff, Stephens and Jaeger, all wearing gloves and Grindstaff a mask, entered the basement at 6915 Delmar and 'with Grindstaff using a screwdriver prying on the door Jaeger stated that he kicked it and forced it open.' As they entered the first floor 'they heard a woman hollering on the second floor,' the three of them ran up the stairs and on the way up Jaeger 'tore a telephone from the wall.' Jaeger saw 'a little small elderly lady' (Mrs. Cook the housekeeper) in a doorway of a bedroom and after tying her feet and hands with strips of cloth from a sheet, left her on a bed covered up with blankets. Unable to find any large sums of money, $20,000 to $30,000, 'they' but Mrs. Piccione with a screwdriver and a pistol, tied her feet and hands and blindfolded her in an effort to compel her to reveal the location of a wall safe or 'where the money was.' Mrs. Piccione said, 'I was bandaged, sir, about three times; my legs were crossed like this, and my ankles bandaged very tight, and also my wrists; and it was so tight that, you know, the blood was throbbing. My ankles and my--I was beaten on the legs and through my body, through my chest and my ribs, and my head.' (She was hospitalized for 12 days.) Finally the robbers took $15 in cash from Mrs. Piccione's pocketbook, they found and took several silver dollars, a diamond bar pin, a platinum bar pin, a diamoned ring, a diamond wristwatch, a large aquamarine stone, a mink stole, a mink coat and finally left in Mrs. Piccione's pink Lincoln automobile--later found near Ramada Inn. On October 16 the police arrested Jones, 'when they picked me up I didn't know what they had in their mind,' and, in the language of the cross-examiner, he 'confessed to the Piccione robbery.' On the same date, October 16, a police officer took possession of two guns found in a drawer in the Driftwood, one identified as Jaeger's. Shortly Stephens, Grindstaff and Jaeger were arrested, Jaeger refused to sign a written statement but made a rather full oral admission to police officers and both Mrs. Piccione and Mrs. Cook identified him as one of the three robbers.

These detailed circumstances, needless to say, support the charge and are indeed sufficient to establish, as the jury found, Jaeger's guilt of robbery with a dangerous and deadly weapon. Some of his objections in his motion for a new trial, for example as to Instruction 1, are based upon the claim that he, Jaeger, did not personally assault Mrs. Piccione with the pistol. There is an assignment based upon the admission in evidence of the pistol, identified by Jones as the 'gun that Jaeger handed to Grindstaff.' But without setting forth specific testimony and demonstrating, the evidence not only shows that Jaeger took part in the actual robbery of Mrs. Piccione, it also shows that he was 'conspiring and counseling in planning the crime, as well as procuring articles to be used in the preparation thereof' and so in any event he was guilty as a principal. RSMo 1959, Sec. 556.170, V.A.M.S.; State v. Tripp, Mo., 303 S.W.2d 627. Not only was the pistol properly admissible in evidence, there was no error in charging the jury that 'All persons are equally guilty who act together with a common intent in the commission of a crime,' etc. State v. Churchill, Mo., 299 S.W.2d 475.

Instruction 4 instructed the jury in part 'that any oral statement made by any defendant, even though it should contain matters that tend to prove his guilt, is admissible in evidence against the defendant and is to be given such probative value as evidence as you believe it deserves, if you find it was voluntarily given.' The partially briefed objection to this instruction (there is no citation of authorities to any of the five points raised) is that 'it is confusing and misleading. The instruction refers to any oral statement by any defendant, which could refer to the testimony of Tommie Jones, who confessed to this crime on the witness stand, but who was not a defendant in this case and who also made a statement to Major Dougherty.' It may well be that this instruction should not be given, it is indeed fraught with hazards because unless the defendant was present or there are other exceptions, a confession or admission by one conspirator 'is not ordinarily admissible against others participating in the crime or conspiracy and implicated thereby.' 22A C.J.S. Criminal Law Sec. 769, p. 1156; State v. Hill, 352 Mo. 895, 179 S.W.2d 712. But whether a proper instruction or not the question here is whether for any of the reasons specifically presented it is manifestly prejudicial and therefore entitles the appellant to a new trial.

The appellant's own stated point may contain a sufficient answer, while Thomas Allen Jones is 'still charged with this crime,' he is not, in the appellant's language, 'a defendant in this case.' Jones testified that after his arrest he 'confessed' to the police but any confession he may have made was not offered in evidence and no one testified to any admission he may have made. He did 'turn state's evidence' but that can hardly be construed as either a confession or an admission in their conventional sense or as employed in the instruction. The only admission testified to as such was that of the appellant Jaeger to the police and in its essence that admission did not differ materially from Jones' testimony and so any admission by others would merely be corroborative of the one made by Jaeger. In view of all these reasons and circumstances it may not be said that Instruction 4 was manifestly prejudicial demanding the granting of a new trial. State v. McCloud, Mo., 328 S.W.2d 586.

The fifth error urged in the appellant's brief is that the court erred in refusing to declare a mistrial by reason of the alleged highly prejudicial argument of the state's attorney 'when he repeatedly referred to the witnesses as...