State v. Parcel

• Citation: 546 S.W.2d 571
• Decision Date: 01 February 1977
• Docket Number: No. 10118,10118
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ralph Edison PARCEL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 571

546 S.W.2d 571

STATE of Missouri, Plaintiff-Respondent, v. Ralph Edison PARCEL, Defendant-Appellant.

No. 10118.

Missouri Court of Appeals, Springfield District.

Feb. 1, 1977.

Motion for Rehearing or to Transfer Denied Feb. 9, 1977.

Application to Transfer Denied March 14, 1977.

John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Loren R. Honecker, Springfield, for defendant-appellant.

Before BILLINGS, C.J., and HOGAN and FLANIGAN, JJ.

BILLINGS, Chief Judge.

Defendant Ralph Edison Parcel was convicted of felony murder (§ 559.010, RSMo 1969 ¹) and sentenced to life imprisonment. In this appeal he challenges the sufficiency of the evidence to support his conviction and claims the trial court committed reversible error in failing to grant him a change of venue from Greene County and in admitting certain evidence at his trial. We affirm.

Defendant's confederate, Earl Albert Weeks, was earlier convicted in a separate trial of the brutal slaying of 81-year-old Lena Cukerbaum, a rural storekeeper, during the course of a robbery. The essential facts giving rise to the defendant's conviction are set forth in some detail in State v. Weeks, Mo.App., 546 S.W.2d 567, decided this date, and will not here be repeated except insofar as to rule defendant's points.

Defendant's testimony at his trial was, in most respects, corroborative of the state's principal witness Teitsworth. However, defendant stated he did not enter Mrs. Cukerbaum's store-dwelling, did not participate in the binding and beating of Mrs. Cukerbaum, and remained outside the building serving as a lookout while Weeks was inside. Defendant said Weeks was 'in charge' the night of the robbery-murder and gave the orders. He understood the trio was only going to burglarize the Cukerbaum store and said he received about $100 form Weeks as his share of the proceeds from the robbery. He admitted that his earlier testimony in support of Weeks' motion for a new trial was a series of lies induced by his fear of and threats by Weeks. ²

In his first point defendant does not question the death of Mrs. Cukerbaum but claims there was a lack of evidence to show that the homicide occurred during a robbery. In furtherance of this contention, the defendant argues that we should not consider his testimony in determining the sufficiency of the evidence to support his conviction for felony murder.

In our review we start with the well-established rule of law that 'the facts in evidence and the favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the State, and evidence and inferences to the contrary are rejected.' State v. Papin, 386 S.W.2d 355, 359 (Mo.1965). It is also a well-settled rule of law in Missouri that when a defendant offers evidence in his own behalf he waives any objection to the trial court's overruling his motion for a judgment of acquittal at the close of the state's case. State v. Hill, 438 S.W.2d 244, 247 (Mo.1969); State v. Wren, 498 S.W.2d 806, 808 (Mo.App.1973). And, when a defendant chooses not to stand on his motion for a judgment of acquittal at the close of the state's case but presents evidence in his own behalf, the submissibility of the case is determined by an analysis of all the evidence. State v. Sykes, 372 S.W.2d 24, 25 (Mo.1963); State v. Berry, 526 S.W.2d 92, 95 (Mo.App.1975). As this court stated in State v. Chester, 445 S.W.2d 393 (Mo.App.1969), at 395: 'However, by testifying in his own behalf he waived any claim of error in overruling his motion at the close of the state's case (citations omitted) and submissibility must be determined upon the entire evidence. (Citations omitted).'

Defendant also suggests his right against self-incrimination was violated by the court's denial of his motion at the close of the state's case. This is a novel argument but not the law. If defendant felt the state's evidence was insufficient, he could have stood on his motion and questioned the matter of submissibility on appeal.

Aside from the foregoing, and for the moment ignoring defendant's incriminating testimony, the state's evidence, standing alone, was sufficient to support defendant's conviction of robbery-murder. The evidence detailed in State v. Weeks, and repeated at defendant's trial by Teitsworth and other state witnesses clearly demonstrates Teitsworth, Weeks, and defendant Parcel planned their criminal trip to the Springfield, Missouri, area and pursuant to the conspiracy robbed the 'rich old lady' and in the process took her life. Teitsworth related conversations between defendant and Weeks as the trio fled the scene of the crime and returned to Iowa. Money and jewelry were missing from the Cukerbaum store-dwelling immediately after the commission of the crime. Weeks and defendant talked of the small amount of money they had obtained and the manner in which Mrs. Cukerbaum was bound and mistreated in an effort to obtain more money. On the day following the Saturday night murder, defendant had $436 in cash (approximately $100 in dollar bills) and a cut-off nylon in his pocket.

The basic elements of robbery are the taking of property of another by violence to his person or by putting that person in fear of some immediate injury to his person. State v. Reynolds, 521 S.W.2d 486 (Mo.App.1975); § 560.120, RSMo 1969. That Mrs. Cukerbaum was subjected to violence is an understatement. The living quarters of her store had been ransacked. The tackle box in which she regularly kept her money was empty and her jewelry was missing. Immediately following the reunion of the Iowa trio, Weeks produced a hat full of money and complained about not getting more from the 'old lady.' His statement, as a coconspirator, was admissible against the defendant. State v. Lee, 522 S.W.2d 63, 66 (Mo.App.1975). As the Supreme Court of Missouri said in State v. Deyo, 387 S.W.2d 561 (Mo.1965), at 562: 'In view of the fact that there was evidence of a conspiracy, the statements of one of the conspirators were admissible against the other conspirator.'

As earlier noted, we are not limited in our review of the question of submissibility to the state's evidence, although in our opinion it was sufficient. And when defendant's testimony favorable to the conviction is added, the scales become lopsided on the issue of submissibility of the death of an aged working woman during the course of a violent and savage robbery. The state was not required to prove the defendant committed each and every act that constitutes the criminal offense (State v. Colthrop, 437 S.W.2d 75, 77 (Mo.1969); State v. Reynolds, supra) and defendant Parcel is liable for the actions of his coperpetrator Weeks as well as his own. State v. Young, 490 S.W.2d 28, 30 (Mo.1973). Defendant's first point is denied.

Defendant next contends the lower court erroneously denied his motions for a change of venue from Greene County. He says the extensive pretrial news coverage by newspapers, radio, and television prevented him from having a fair and impartial trial in that county.

The robbery-murder of Mrs. Cukerbaum occurred the night of November 30, 1974. A preliminary hearing for defendant and Weeks was held January 29, 1975. An information charging the two men with felony murder was filed February 6. They filed their joint motion for a change of venue from Greene County on March 18. A lengthy hearing was conducted on the matter by the Honorable Douglas W. Greene, Division Two, on March 24 and denied. The trial of Weeks began in Division Two on March 31 and concluded April 5.

Because defendant's motion for a serverance from his codefendant had been sustained, his case was transferred to Division Three, the Honorable James H. Keet, Jr., presiding. Defendant on May 5 renewed his motion for a change of venue. As additional grounds he referred to the extensive publicity given the trial of Weeks. Again, a hearing was held (June 30) following which Judge Keet denied the application. Defendant's trial commenced on July 28 and ended on July 31.

We have carefully examined the nearly 300 pages of transcript of the two hearings and agree with the two trial judges that, contrary to defendant's allegations, the citizens of Greene County had not been prejudiced by the publicity surrounding the robbery-killing of Mrs. Cukerbaum and the events leading up to the defendant's trial. As to be expected, the news media reported events as they happened. Media representatives called by defendant and Weeks in their initial hearing uniformly testified they had not broadcast or reported any statements from the authorities relevant to the guilt or innocence of the two men charged or statements concerning any of the evidence or results of laboratory tests about the crime, or any admissions or confessions by the men. At this hearing various citizens of Greene County were called by the state and their testimony, except for one person, negated the allegations of prejudice arising from the...