State v. Medley, s. 41694
| Decision Date | 10 July 1950 |
| Docket Number | Nos. 41694,41707,No. 1,s. 41694,1 |
| Citation | 360 Mo. 1032,232 S.W.2d 519 |
| Parties | STATE v. MEDLEY. STATE v. FITHEN |
| Court | Missouri Supreme Court |
Milton B. Kirby, Springfield, for appellants in error. J. E. Taylor, Attorney General, Harry H. Kay, Assistant Attorney General, for defendant in error.
Defendants were jointly charged, tried and convicted of possession of burglar's tools under Sec. 4449, R.S. 1939, Mo.R.S.A., and the punishment of each was fixed at five years imprisonment in the penitentiary. A single record has been brought up for review on writ of error.
An information was duly filed in the Circuit Court of Cole County on February 3, 1949, wherein it was charged that defendants Fithen and Medley and one Robert Charles Hand 'at the County of Cole, State of Missouri, on the 5th day of October, 1948, did wilfully, unlawfully and feloniously have in their custody and concealed about their persons one 13 pound maul, one 1/4"' X 5/8"' X 9"' punch, two hack saw blades, two dry cell flashlights and three pairs of gloves, all of which said articles and tools, being then and there material implements, instruments and mechanical devices, adapted, designed and commonly used for breaking into any vault, safe, railroad car, boat, vessel, warehouse, store, shop, office, dwelling house, or door, shutter or window of a building of any kind, * * *.'
A severance was granted to defendant Hand, the charge was subsequently dismissed as to him and he testified for the State in the trial of this cause. The State's evidence tended to show that on the morning of October 5, 1948, about 8 a.m., Troopers R. E. Swackhammer and J. C. Smith of the State Highway Patrol observed a Black and White Taxicab, bearing an Illinois license, parked beside U.S. Highway 50, just east of the city limits of Jefferson City. Defendants Fithen and Medley were seated in the taxicab (Medley in the front seat, Fithen in the back) and Hand was outside apparently fixing a windshield wiper. It was raining. Trooper Swackhammer inquired of defendants and Hand as to where they were from, what they were doing in Missouri and 'who had authority to have a cab over here with an Illinois license.' Hand claimed possession of the taxicab. The men stated they were going to Arkansas squirrel hunting. Later, defendant Medley said they were just riding around for the ride, but that he didn't own the automobile and had no control over it. The taxicab and men were taken to Troop F. Headquarters nearby, where an investigation was made as to violation of Public Service Commission regulations. The driver of the cab (Hand) was being investigated as to whether he had permission to have the cab in Missouri. The officers weren't actually taking the defendants to Troop Headquarters but they were with the cab driver. It took about 1 1/2 hours 'to run radio checks on the motor numbers and license numbers.' The motor number of the cab was examined. Only the first three numbers could be read, the others had been obliterated. The secret number was examined, it didn't check, and the operator of the cab, Hand, was advised and his permission asked to look over the cab. Permission was granted. In the glove compartment of the cab the troopers found a 12 inch hack saw blade and a two cell flashlight. A case hardened steel punch 1/4 of an inch by 5/8 and about 9 inches long was found under the front floor mat. It appeared to have been used. One pair of jersey gloves lined with red woolen material was found under the front seat and another over the back seat by the back glass, where a second two cell flashlight was also found. Fithen claimed one pair of gloves and one flashlight, but denied the tools. A thirteen pound sledge or maul was found in the trunk of the taxicab. The wooden handle of the sledge (approximately 26 inches long) had been sawed off and there was wood fibre in the teeth of the hack saw blade. Subsequently, after defendants were arrested, a pair of gloves was found on Medley's person and a hack saw blade about 5 1/2 inches long, broken in two, was taken from the fly of Fithen's trousers on the following day, after Fithen was in the Cole County jail. The several items mentioned were identified and offered and received in evidence. No fire arms were found in the automobile or on the defendants.
The testimony of Robert Charles Hand tended to show that he resided in East St. Louis, Illinois; and that in October 1948 he was a cab driver operating a Black and White Taxicab in that city. He had known defendant Fithen about 2 weeks prior to October 5, 1948 and defendant Medley about 9 months. He saw Medley and Fithen on October 4, 1948 across the street from the cab office. Fithen said he wanted to use a cab to go to Springfield, Illinois, that he was going up there to look over a lumber yard, he 'said he heard it would be a good place to go up there and burglarize.' He told Hand that defendant Medley would go with him. Hand later picked up Fithen and went to a drug store in East St. Louis, where Fithen bought a two cell flashlight (later found in the cab). Fithen told Hand he wanted to buy a three cell flashlight, but it showed too much light, that 'he covered it with his hands, and the light showed through the cracks between his fingers.' Hand also wanted Fithen to buy a big flashlight, but he bought a small one. At Fifth and Summit streets in East St. Louis, they picked up defendant Medley, he was waiting for them there in an open field. He had some tools, a punch (like the one subsequently found in the car), a hack saw blade and a flashlight wrapped in a shop towel. In the taxicab, Medley placed the flashlight in the glove compartment and the hack saw blade there also, but between two license plates. They then drove to Tenth and Pickett, where defendant Medley cashed a check and paid witness $5.00. Prior to that time defendant Fithen had paid $11.50 and witness was to be paid additional money. Hand had first seen the sledge or maul at Salem, Arkansas, in the possession of Hand's brother. Two weeks before October 5, Hand saw the maul in the possession of defendant Fithen at Moko, Arkansas. Fithen obtained the maul from Hand's brother. Defendant Medley was present at the time. The maul was left in the back of No. 14, Chevrolet, Black and White Taxicab on a parking lot at Eighth and State streets in East St. Louis until October 4, 1948.
After Medley cashed the check on October 4, 1948, and Hand advised his mother he was making a trip, Hand, Fithen and Medley started for Springfield, Illinois. Before they left Fithen had told Hand to 'go get the maul' and Hand got it from the other taxicab before he went for Fithen. On the trip, Fithen and Medley got the hack saw blade out of the glove compartment and started to saw off the handle of the maul. While on the way to Springfield, Illinois, defendant Medley said to Hand that 'if they found a place they liked they would get out' and he 'should drive twenty miles, and then turn around and come back, and they would put some corn stalks and wheat across the road so' he would know where to pick them up. On the way they stopped at a garage and Fithen or Medley said the garage probably had a vault in it. Hand had heard Medley speak of 'squirrel hunting' before they were stopped by the patrol on U.S. Highway 50, near Jefferson City. At a Pontiac garage on the left hand side of Highway 50, Medley had said 'that would be good squirrel hunting.' Hand disclaimed ownership of the mentioned items which were found in the taxicab. He said he drove the taxicab where Fithen directed him from East St. Louis to Springfield, Illinois, then to Hnnibal, Mexico, and to Jefferson City. Hand had been convicted of larceny in 1942 and served two years in the Illinois penitentiary.
After defendants had been arrested on the mentioned charge, and after they were advised of the charge and of their rights, they made certain voluntary oral statements to the officers. Fithen stated that he acquired the sledge in Arkansas; that it had been given to him; that Medley and Hand were with him; that he put the sledge in the trunk of the taxicab and had it with him; that he and Medley sawed off the handle; that he was the owner and in possession of one hack saw blade, one flashlight and one pair of gloves; that he took the gloves, one flashlight and sledge with him on the trip to Springfield, Illinois; and that he knew that Medley had in his possession a punch, one other flashlight and a pair of gloves. He said they left East St. Louis, Illinois, on October 4, 1948; that he was going to Springfield, Illinois; that he and Medley had gotten Hand to take them there to look for a job; that they were to share expenses; and that Hand was to be paid for the trip. He said that at first the sledge was in the trunk of the cab; but that on the trip they got the sledge out and, with the long hack saw blade, they sawed off the handle. They started to work on the handle in the back seat of the cab, but Hand objected and stopped the cab. Fithen and Medley finished sawing the handle off outside of the cab. He said the cab in which the sledge was placed, when it was acquired in Arkansas, was not the cab used on October 4 and 5, 1948. He further stated that he was a railroad worker; that he had been convicted four times for automobile theft; that he had served sentences in Ohio, Kentucky, Illinois and Georgia; and that he had also been convicted of grand larceny and receiving stolen property.
On the same day, October 7, 1948, and under somewhat similar circumstances, defendant Medley made a voluntary statement to the officers. He said he was in the insect and spray business and was also a blacksmith. He first denied and later admitted his possession of part of the items found in the taxicab, to wit, the hack saw blade found in the glove compartment of the cab, the punch, one flashlight and a pair of gloves (all of which...
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