State v. Marshall

• Decision Date: 31 December 1930
• Docket Number: No. 30282.,30282.
• Citation: 34 S.W.2d 29
• Parties: THE STATE v. HALLETT MARSHALL, Appellant.
• Court: Missouri Supreme Court

34 S.W.2d 29

THE STATE v. HALLETT MARSHALL, Appellant.

No. 30282.

Supreme Court of Missouri, Division Two.

December 31, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.

AFFIRMED.

Paul A. Richards for appellant.

(1) The information does not charge an offense punishable under the laws of Missouri. Sec. 3702, R.S. 1919; State v. English, 274 S.W. 470; State v. Levy, 262 Mo. 181; Secs. 2379, 4913, R.S. 1919. (2) The trial court erred in refusing the demurrer to the evidence offered by the defendant at the close of the State's case. R.S. 1919, sec. 3307.

Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General, for respondent.

(1) While the defendant had no weapon, yet the witness testified that he was in fear of bodily injury at the hands of the defendant. He thought defendant was armed with a gun which he held in his right hand under his shirt. In addition to the testimony of the eye witnesses, a police officer testified that defendant admitted to him that he was Hallett Marshall and had committed the crime. (2) Appellant in his motion to quash contends that the defendant has never been sentenced to imprisonment in the penitentiary and consequently has never been convicted of any offense within the purview of Sec. 3702. R.S. 1919. The statute plainly says "punishable by imprisonment in the penitentiary." That the defendant was not punished by imprisonment in the penitentiary does not change the fact that he was tried and convicted for an offense that was punishable by such imprisonment. State v. Underwood, 254 Mo. 469; State v. Gabriel. 301 Mo. 365. The prior conviction with which the defendant stood charged was of the offense of larceny of a motor vehicle. That is an offense punishable by imprisonment in the penitentiary.

HENWOOD, J.

By an information filed in the Circuit Court of the City of St. Louis, the defendant is charged with robbery in the first degree, as defined in Section 3307, Revised Statutes 1919, and, for the purpose of bringing the case within the provisions of Section 3702, Revised Statutes 1919, known as the Habitual Criminal Act, it is alleged in the information that the defendant was previously convicted of stealing a motor vehicle, imprisoned and discharged. The jury found him "guilty of robbery in the first degree and of one prior conviction, as charged in the information," and assessed his punishment at imprisonment in the penitentiary for life. He was sentenced accordingly, and, in due course, appealed.

The defendant, through his attorney, admitted that, on April 9, 1928, in the Circuit Court of the City of St. Louis, he was duly convicted, on his own confession, of stealing a motor vehicle, and duly sentenced, in accordance with said conviction, to imprisonment in the city workhouse of the city of St. Louis for one year, and duly discharged from said workhouse after and upon lawful compliance with said sentence.

With reference to the alleged robbery, the State developed the following evidence: About three o'clock in the morning of August 2, 1929, the defendant entered, through the front door, a restaurant at 205 North Eleventh Street, in the city of St. Louis, owned and operated by Dew Drop Inn, a corporation duly organized and existing under the law of Missouri. At that time, John Stewart, the night manager, was "sitting down," leaning against a partition, in the rear part of the restaurant. Glenn Phipps, the night cook, was sitting at the counter, by the cash register, drinking a cup of coffee; and Malcolm McCall was standing in the front door, sweeping. There were no other persons in the restaurant. When the defendant walked into the restaurant, he had his right hand inside of his shirt. The defendant "ordered" a cup of coffee, and, when Phipps got up to serve the defendant, with his back to the defendant, the defendant "had something in his hand" that McCall "couldn't see, but he had it against the cook's (Phipps') stomach, on the side of him." Phipps "looked quite natural, but he stood there as though he was petrified." Stewart saw no weapon in the defendant's hand. The defendant said to Phipps: "All right, get on the floor and no noise." Phipps "went onto the floor." Then, speaking to McCall, who was sweeping near the front door, the defendant said, "Come over here, you." McCall replied: "You go to hell." And, as he so addressed the defendant, McCall dropped his broom or brush, and "out the door" he went. He "ran over to Olive Street," yelling "robber;" then on, a couple of blocks, to a fire engine house, where he asked the man at the desk to call police headquarters. While Phipps was on the floor, defendant "cleaned" the cash register. He took all of the money out of the cash register, "around fifty-five or sixty dollars," the property of Dew Drop Inn, "put it in his front pockets," and left the restaurant, hurriedly, through the front door. The rear part of the restaurant, where Stewart was sitting, was dimly lighted, and, apparently, the defendant did not see Stewart. Stewart said: "I stayed there because the man (the defendant) had his hand in his shirt; I didn't know whether he had a pistol or not; I was scared to get up; I don't think he (the defendant) even saw me." John J. Ryan, a private watchman in that vicinity, heard McCall yelling "robber," and arrested the defendant about twenty-five feet north of the restaurant, on North Eleventh Street. When arrested, the defendant said to Ryan: "Well, I guess you have got me." Then "he took money out of his pocket, both his front pockets, and threw it on the sidewalk." This money was picked up, a few minutes later, by police officers. When searched at police headquarters, the defendant had "fifty-seven dollars and thirty cents" in his pockets, but the officers "didn't find any weapon on him." Shortly after the defendant was taken to police headquarters, he was questioned by Walter C. Bauer, a detective, who testified as follows: "I asked if he went in there and took that money. He said he had; that he went in there and taken the money; and went behind the counter, and made the cook lay on the floor, and went to the cash register, and took the money out. And I asked what he done with the money, and he said he put in in his front pants pockets. He stated he didn't have any weapon, he merely had his hand in his shirt. He said he started to leave the place, and that was when he was arrested by Watchman Ryan." Phipps worked at the restaurant only a short time "after the holdup," and did not testify at the trial of this case. Eugene Canda, a police officer, attached to the Circuit Attorney's office, made "an effort to locate the witness Glenn Phipps," but "was unable to find him."

No evidence was offered on behalf of the defendant.

I. The defendant contends that Section 3702, Revised...