State v. McDonald
| Decision Date | 28 October 1933 |
| Docket Number | 32836 |
| Citation | 64 S.W.2d 247 |
| Parties | STATE v. McDONALD |
| Court | Missouri Supreme Court |
Verne Lacy, of St. Louis, for appellant.
Roy McKittrick, Atty. Gen., and Frank W. Hayes, Asst. Atty. Gen for the State.
Appellant and one Bart Davitt were jointly charged by indictment in the circuit court of St. Louis county with robbery in the first degree by means of dangerous and deadly weapons. Upon motion of his coindictee, a severance was granted, and appellant, at the September, 1931, term of said court, was tried and convicted, his punishment being fixed at a term of ten years in the penitentiary. After an unsuccessful motion for new trial, he has appealed.
The transcript of testimony is quite voluminous, containing more than five hundred pages, but, for the purpose of disposing of the question presented on this appeal, it may be summarized as follows:
The evidence on the part of the state was that at about noon on August 3d, 1931, while returning to the city of St. Louis from St. Albans, in Franklin county, where he had been visiting his mother, one Oscar Johnson, a young man twenty-six years of age, was driving alone in his Cadillac roadster along a narrow, winding, and very hilly road in St. Louis county, known as, Melrose road. Upon reaching the top of Melrose hill, he found a Ford, or other small car, parked at one side of the roadway, where, under the evidence, it had been parked for some considerable time. At the rear of the car were two men who were ostensibly changing a tire. One of the men had on light clothing both in weight and color -- a light shirt, with no coat, and seersucker trousers. The other wore a black raincoat. When Johnson, the prosecuting witness approached, he was ordered to stop by the two men just mentioned, one of whom, identified as appellant, had a sawed-off shotgun, and the other, his coindictee, Davitt, held a large revolver. Johnson stopped and got out of the car, and, after an altercation in the roadway, he was commanded to re-enter his car, which he did, accompanied by his two assailants. Davitt got in on the driver's side, and drove the car, and appellant sat on the right-hand side of the seat with Johnson in the center. As soon as the car was started appellant produced a pair of taped goggles which were placed over Johnson's eyes. These he removed, and it seems that, as quickly as they were replaced by appellant, the prosecuting witness would continue to remove them. Appellant finally directed Johnson to place his head under the dash, and made efforts to force him to do so.
As the car passed Kreienkamp's store, Johnson cried for help, and about a mile and a half beyond such store he succeeded in so kicking the ignition switch as to cause the car to come to a full stop. At this juncture all three occupants of the car alighted, and, in an adjacent cornfield, a lively and quite bloody encounter ensued between them, wherein Johnson was very severely beaten, bruised, and robbed. In the fighting and scuffing a considerable area of the cornfield was damaged and torn up by reason of the participants tramping down the stalks. Johnson testified that he was there shoved, beaten, and repeatedly struck over the head with guns wielded by appellant and Davitt, the principal one being the large sawed-off shotgun held by appellant, who finally struck the prosecuting witness a crushing blow in the mouth, as a result of which he became dazed, and was caused to fall to his knees. While in that condition, appellant reached into Johnson's inside coat pocket, and took the latter's pocketbook, and thereupon, in company with Davitt, departed toward the car. Johnson testified that his pocketbook contained between fifty and eighty dollars in new currency, principally $ 10 bills, which he had recently gotten at the bank. His pocketbook, which was stamped with his initials was found on the morning of the second day after the robbery, within a quarter of a mile of the cornfield, by a Mrs. Stearns. The prosecuting witness then walked or stumbled off in the opposite direction, and into and through some woods, and finally came to a house owned by one Grower, located, perhaps, a quarter of a mile from the cornfield and occupied by a Mr. Stearns and family. At that time Johnson was bleeding profusely, his lip was split, a tooth was broken, another one chipped off, and certain others left uneven and out of natural alignment; there was also a hole punched completely through his lower lip, and numerous gashes on the top of his head. He was given first aid treatment at the Stearns house, and then taken immediately to the Barnes Hospital in St. Louis. Appellant and Davitt were arrested between 3 and 4 o'clock of the same afternoon, and within about a half a mile of the scene of the robbery, under circumstances which will be hereinafter noticed.
One Adams, a deputy sheriff in the employ of the mother of the prosecuting witness, was proceeding in a car along the Melrose road at about 1:30 or 2 o'clock in the afternoon and recognizing Johnson's Cadillac car standing in the road beside the cornfield, with the door thereof open, stopped and made an investigation. He observed the broken down cornstalks, and blood stains on the ground as well as on some of the stalks, and he first followed tracks leading away from the field, and in the direction afterwards described by the prosecuting witness as having been taken by him. He then returned to the car, and followed two sets of tracks leading into the woods. Within three hundred and fifty feet of the cornfield, he discovered a pile...
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