State v. Kennedy

• Citation: 108 S.W.2d 384
• Decision Date: 26 August 1937
• Docket Number: No. 35119.,35119.
• Parties: STATE v. KENNEDY.
• Court: United States State Supreme Court of Missouri

108 S.W.2d 384

STATE v. KENNEDY.

No. 35119.

Supreme Court of Missouri, Division No. 2.

August 26, 1937.

Appeal from St. Louis Circuit Court, Division No. 11; Harry F. Russell, Judge.

Frank Kennedy was convicted of murder in the first degree, and he appeals.

Affirmed.

Roy McKittrick, Atty. Gen., and Russell C. Stone, Asst. Atty. Gen., for the State.

LEEDY, Presiding Judge.

Frank Kennedy (the appellant) and his co-indictees, Arthur Schnelt and Charles Douthitt, were jointly charged with murder in the first degree in having shot and killed one Charles J. Abeln in the city of St. Louis on December 21, 1933. Upon a separate trial, Kennedy was convicted, as charged, and sentenced to life imprisonment in the penitentiary, and he appeals, although he has filed no brief in this court.

Douthitt, who had entered a plea of guilty, took the stand and testified for the state in the case at bar, as well as in the companion case against Schnelt, which likewise resulted in a conviction of murder in the first degree, and a sentence of life imprisonment. On appeal to this court, the judgment in Schnelt's Case was recently affirmed, and the case is reported as State v. Schnelt, 108 S.W.(2d) 377 (not yet published [in State Reports]).

The essential facts in the two cases are identical, so that, with appropriate alterations and additions, the bulk of the statement of facts in the Schnelt Case may be utilized in the case at bar, and this will be done, but without the use of quotation marks.

On the part of the state it was shown that Abeln was president of Abeln Brothers' Cigar & Tobacco Company, which was a corporation operating five cigar stores at different locations in the city of St. Louis. It was the custom of Abeln to make daily collections of the receipts of the several stores and bring the money to the main store at the southeast corner of Broadway and Alberta, where it was kept until that store closed in the evening, when it would be checked. Mr. Abeln would then take the money to a bank at Jefferson and Gravois avenues, where facilities were maintained for making deposits at night. On such trips he was usually, or at least frequently, accompanied by his wife.

Douthitt had recently been released from the Missouri Penitentiary, where he became acquainted with his codefendants. He testified that for some three or four weeks prior to December 20 he had been frequenting a saloon in the 1500 block on South Broadway operated by a relative of Schnelt; that on the afternoon of the day just mentioned he went to that saloon where he saw appellant and Schnelt, and had a conversation with appellant, during the course of which appellant told the witess that he and Schnelt planned to rob some one, and that he thought the witness could be "cut in on the job," which offer the witness declined at the time. Returning to the saloon the next afternoon, the witness again saw Kennedy and Schnelt and again had a conversation with appellant to the following effect: "Kennedy said he and Schnelt had looked this job over, had been down there the night previous; explained the job was late at night; it was a man and woman. He didn't tell me where it was, but that it was an easy job. Went to Schnelt if he didn't want me cut in on the job, but it was all right with him, and he asked me if I wanted to go, so I made up my mind and told him I would." The witness returned to the saloon at 8:30 or 9 o'clock that night, and saw Kennedy and Schnelt, who told the witness to "wait until about a quarter to twelve and leave." It appears that at the appointed time the three left the saloon together, and walked to a blue Chevrolet car, which was parked on Barry street a little west of Broadway. Schnelt drove, and Douthitt sat on the left side in the rear seat, and Kennedy on the right side in the same seat. As they entered the car, Schnelt handed the witness a pistol; Kennedy had a pistol "laying on the floor in the rear seat, and he picked the gun up, showed it to me * * * it was a .380 automatic." Schnelt had a .32 Colt's automatic. Asked to relate what occurred then, the witness answered that en route to the scene of the proposed holdup, Kennedy and Schnelt explained "the nature of the job," and that the intended victim was Abeln. Exact plans were made by the three conspirators for the carrying out of the robbery and for their escape, pursuant to which Kennedy and Douthitt got out of the car and stationed themselves in a doorway opposite the door of the cigar store through which Abeln was expected to emerge. Schnelt drove a short distance south on Broadway and stopped, remaining with the car. He was to pick up his confederates immediately after they had accomplished the robbery and the three were to flee together in the car.

Presently Mr. and Mrs. Abeln came out of the store and started walking toward their automobile, parked a short distance away, Mr. Abeln with his left arm linked in his wife's right arm and with his right hand in his overcoat pocket. Mr. Abeln was carrying the satchel or money bag containing the money and checks in his left hand. Pursuant to their prearranged plans, Douthitt and Kennedy "cut across" the street so that Douthitt could and did approach the Abelns from in front, meeting them, and Kennedy approached them from behind. The Abelns apparently did not observe that movement. Kennedy was to give a command to the Abelns to throw up their hands and either he or Douthitt was to get the money. Kennedy gave such command. Mr. Abeln turned, at the same time withdrawing his right hand, with a pistol therein, from his overcoat pocket. A fusillade of shots followed instantly, and Mr. and Mrs. Abeln fell, mortally wounded. Subsequent developments indicated that one or two shots were apparently fired by Abeln and six or eight by his assailants — Douthitt says by Kennedy. They were all in quick succession. Whether Abeln fired before or after he was hit by Kennedy's shots is not clear, nor is it here material. Abeln was rushed to a nearby hospital by persons attracted to the scene by the shooting. He died either on the way there or very soon after reaching there, without making any statement. Mrs. Abeln appears to have been killed instantly. Her dead body was found at the scene of the holdup. Further details to the attempted robbery and the murder are unnecessary.

According to Douthitt's testimony he and Kennedy immediately fled the place of the shooting without pausing to secure the intended loot. They left by different routes, but very soon met and went to the place where their car, with Schnelt therein, was supposed to be waiting for them and found it gone. They hid their guns under some leaves at a place described by Douthitt, and then separated; Douthitt spending the rest of the night in a certain shed and getting to his home about 7 o'clock in the morning. He said that about 11:00 a. m. (on the 22d) Schnelt and Kennedy came to his room and both Kennedy and Schnelt told him that he (Douthitt) had nothing to worry about; that Schnelt said he had been chased that night by the police but had gotten away and believed that "they" had mistaken the last number, "7," on his license plate, for a number "1." In the afternoon of that day, the 22d, he again met Kennedy and Schnelt and they were out of humor, or "mad" at him (Douthitt) because he hadn't picked up the satchel with the money in it. They asked him why he didn't get the money, "and I told him I didn't want blood money." Douthitt left the saloon about 5:30 that evening. Later that evening he borrowed $2 from Schnelt and a car from Kennedy and moved from the room he then occupied to another place.

At about the time of the shooting five young men were on the sidewalk near the place where Schnelt was supposed to be waiting in his Chevrolet car. They heard the shooting and immediately thereafter observed a Chevrolet car (which fairly fits the description of Schnelt's car), driving rapidly, cutting corners, and ignoring stop signs. As well as they could catch the number on the license plates, it appeared to them to be "345-461." That license number and a description of the Chevrolet car was broadcast to the police force. A police officer testified that he received said license number and a description of the Chevrolet car from the radio dispatcher about 12:55 in the morning of December 22d, and "spotted" a car answering that description with a license plate which he thought bore said number. He chased that car for some distance, in the course of which he fired two shots at it, but finally lost it. Later,...