State v. Lawrence
| Decision Date | 11 July 1955 |
| Docket Number | No. 1,No. 44364,44364,1 |
| Parties | STATE of Missouri, Respondent, v. Leo LAWRENCE, Appellant |
| Court | Missouri Supreme Court |
Lauf, Bond & Dominique, John O. Bond, and P. Pierre Dominique, Jefferson City, for appellant.
John M. Dalton, Atty. Gen., Winston Cook, Asst. Atty. Gen., for respondent.
Defendant was charged and convicted of the crime of larceny from the person, where the value of the property stolen was in excess of $30, and under the habitual criminal act. He was sentenced to a term of seven years in the state penitentiary. See Sections 560.190 and 556.280 () The prior conviction alleged and shown was for the offense of breaking jail, a felony, and the term assessed and served was two years in the state penitentiary. It does not appear whether this charge was under Section 557.380 or Section 557.390.
Defendant has appealed and contends that the court erred (1) in refusing to direct a verdict of acquittal as requested at the close of the State's evidence; (2) in permitting the introduction of certain evidence as hereinafter set out; and (3) in giving Instruction No. 1 on behalf of the State.
The State's evidence tended to show that one Joseph F. Lenz resided at 2318 South Broadway in the city of St. Louis and was employed at the Small Arms plant of the U. S. Defense Corporation. About 6:30 p. m., on Sunday, May 24, 1953, he went down to Bobby's Tavern at Broadway and St. George streets in said city, where he stood at the bar and had a beer with two of his friends. Later, he went to the back of the tavern and passed by a table where two men and a woman were seated. He did not know them, but he spoke saying: 'Good evening' and they invited him to sit down. He sat down, visited with them and ordered two rounds of 3.2 beer. At no time while he was in the tavern or later that evening did he ask or obtain the name and address of any of these persons. It later appeared that they were Roy Ryterski, Leo Lawrence (defendant), and Nona Hardin. According to defendant's opening statement before the jury, the defendant was residing with Ryterski at 2033 Gasconade street and Ryterski was keeping company with Nona Hardin, who was a sister of defendant's wife.
After visiting in the tavern for an hour or so, Lenz suggested that they all go to the Royal American Carnival, All-American Shows, at Grand and Laclede. Lenz did not have a car, but Ryterski had one, and the party went out to the carnival in his car. Defendant drove the car on the way to the carnival. Lenz sat in the back seat with Nona, while Ryterski sat in the front seat with defendant. The car was a Plymouth, black sedan, 4 door. On cross-examination Lenz said that he didn't know anything about Nona being engaged to marry Ryterski; that he did not hear that matter discussed; and that she never said a word to him about getting married to anyone.
As the party proceeded toward the carnival they stopped at the Schott's Place, near the MacArthur Hotel, where Lenz bought eight bottles of beer and took them with him to the car. Lenz and Nona then each drank a beer. They reached the carnival about 8:30 p. m. and stayed there about an hour. Lenz paid the gate fee to the carnival, bought Nona some sandwiches and paid for her ride on one of the attractions. He had previously paid for all of the beer consumed by the party.
When Lenz went to Bobby's Tavern that Sunday evening he had $231 in money with him. Two hundred dollars was in a new brown wallet that had his name engraved on it. He had put the $200 in his wallet on Sunday morning after he returned from work and he carried the wallet in his left hip pocket. He had no occasion to open his wallet while in the tavern or at the carnival as he had $31 in loose change in his right trousers pocket and he used some of this change in paying the expenses of the party that evening.
Lenz and his companions left the carnival about 9:30 p. m. and went to Ryterski's car. Lenz again rode in the rear seat with Nona. She was the first person to get in the car and he got in and sat right beside her, to her right, with very little space between them. Defendant and Ryterski again sat in the front seat, but Lenz was unable to say who drove the car on the way back from the carnival.
Nona was wearing short slacks and, shortly after they started on the return trip, she told Lenz that she had had her right ankle broken and had just taken it out of the cast. She put her right leg up over his left knee and leg and asked him to rub her ankle. He leaned forward and started rubbing her ankle as the automobile was being driven along the street. About that time Lenz noticed that Nona was getting his billfold. She was taking it out of his left hip pocket with her right hand. She had pulled seven or eight inches away from him and had put her right hand in the left hip pocket of his trousers. He felt his billfold coming out of his pocket and he got a glimpse of it in Nona's hand as she was taking it away. At first he asked her what she was doing with his billfold and then he asked her to give it back to him. She did not do so and he then asked her what she had done with it. At that time one of the men in the front seat said, 'Why, you can't talk that way to that girl,' and struck him in the head with a beer bottle. The bottle broke and cut Lenz on the face and head. Lenz had his head turned slightly and couldn't make out exactly who had hit him. While he was still 'kind of stunned by the blow,' the two men got out of the car and ran around and pulled him out, beat him up and left him lying on the sidewalk near 2840 Walnut street in the city of St. Louis. Both of the men struck him a number of times after he was outside the automobile and on the sidewalk. The car was then driven away. Lenz got up and staggered along the street, bleeding from his wounds, and some one called the police. Lenz testified that he had said nothing improper to Nona and had not asked her to go to a hotel with him. When asked, if he had not been thrown out of the automobile because of improper attention to Nona, he denied it, but further said 'that must have been it; that must a been their idea of it.'
Lenz lost his left house slipper in the car, his prescription-ground safety eye glasses, his billfold and the money therein and two buttons off of his shirt. The loose change he had in his right trousers pocket was not taken.
When the police arrived about 9:45 p. m., Lenz was taken to a hospital where he received treatment for his injuries. The police found parts of a broken beer bottle and glass in the street and, from a colored man, obtained the license number of the automobile from which Lenz had been ejected.
About 5 a. m. the following morning, May 25, 1953, the police located the automobile in question at 2033 Gasconade street, where Ryterski answered the door and said he lived there. It was a three room apartment and the police found defendant Lawrence asleep in the front room and Nona in a bed in the middle room. On inspection of the automobile, the police found Lenz's left house slipper on the rear floor, and also Lenz's glasses case, his prescription-ground safety eye glasses, a shirt button, beer bottles, and broken glass. Defendant was arrested and taken to the Ninth Street Police Station where he stated that he had been with Ryterski and Nona the entire afternoon and evening of May 24 and up until he was arrested on May 25. Lenz reached the Ninth Street Police Station at 5:30 a. m. that day and identified the three, Ryterski, Nona and defendant, as the same people he was with the night before. Defendant, however, insisted that he had never seen Lenz until Lenz came to the police station that morning. He said Lenz was never in the automobile with him. Defendant also said that he had not been to any carnival on the prior evening. He was very uncooperative and for the most part refused to answer questions, but did insist that the had never seen Lenz before. No search was made of the premises where defendant was arrested. When searched at the police station after his arrest, defendant had less than one dollar in money on his person and when asked if he stole anything from Lenz, he answered that he had never seen Lenz previously. The automobile was owned by Ryterski.
Lenz saw and identified Ryterski's automobile at the police station that morning as the one in which he had been riding the night before. He recognized it as the same car and looked inside and saw a home-made quilt lying on the front seat, which he said had been at the same place the evening before.
The evidence further showed that on June 1, 1950, in the Circuit Court of Madison County, Missouri, defendant had entered a plea of guilty to the charge of breaking jail; that he had been sentenced to two years in the state penitentiary; and that he had been discharged under commutation of sentence by Governor Smith on September 10, 1951.
Defendant offered no evidence.
Did the court err in refusing to direct a verdict of acquittal? Appellant insists that there was no evidence that he took any money from Lenz, or aided or abetted in the taking of the same. He says there is no evidence that he knew Lenz's money was taken, or that he received any of the proceeds that 'there is not an unbroken chain of circumstances pointing to his guilt'; and that the conviction is based only on conjecture, suspicion and surmise.
Appellant also says 'the evidence clearly shows that Nona Hardin was the one who was guilty of the theft.' He insists that there was no showing that either of the men had knowledge of the theft of the pocketbook or knowingly participated therein; but says that the men became angry because of Lenz's conduct and accusations against Nona. Appellant further contends that Lenz's testimony recognizes that it must have been the men's idea that he was guilty of improper attention toward Nona;...
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