State v. Parker
| Decision Date | 08 June 1959 |
| Docket Number | No. 1,No. 46991,46991,1 |
| Citation | 324 S.W.2d 717 |
| Parties | STATE of Missouri, Respondent, v. Avery Edward PARKER, Appellant |
| Court | Missouri Supreme Court |
Marvin G. Marshall, St. Louis, for appellant.
John M. Dalton, Atty. Gen., George E. Schaaf, Asst. Atty. Gen., for respondent.
HOLMAN, Commissioner.
Defendant, Avery Edward Parker, was found guilty of the offense of robbery in the first degree and his punishment was fixed by the jury at imprisonment in the penitentiary for a term of five years. Sections 560.120 and 560.135 (). He has appealed from the ensuing judgment.
Mr. Alexander Belko was the proprietor of The Belko Drug Store which was located on the corner of Grand and Meramec in St. Louis Missouri. On the night of June 12, 1957, Mr. Belko, his wife Charlotte Belko, and a 16-year-old boy, Raymond Rhode, were working in the store. At about 8:20 p. m., two men entered the store. There were no customers present at the time. One of the men, later identified as the defendant, stationed himself near the entrance almost directly in front of Raymond Rhode with his hand in his right coat pocket. The other man, later identified as Orlan Eugene Rose, pointed a gun at Mr. Belko and, in a 'very belligerent and threatening manner,' told him that it was a holdup. According to the testimony of Mr. Belko, Rose demanded that he place the money on the cigar counter. Belko opened a cash register and threw out 15 one-dollar bills. Rose then demanded 'the big stuff, the fives and tens,' and Mr. Belko then opened the register and threw out a five and a ten dollar bill (both crisp and new) which was all of the paper money in the register. Rose demanded more money and Belko went to another cash register located at the soda fountain and took out three one-dollar bills and placed them on the counter. He then demanded Mr. Belko's billfold, which was given to him, and when he saw it contained no money he threw it back to Mr. Belko. On two occasions when Belko was slow in carrying out his demands, Rose threatened to shoot him, and on another occasion screamed at Mrs. Belko to 'quit looking at me.' The men were in the store about five or six minutes, and after obtaining the money Rose demanded that the three persons in the store lie down on the floor and then he and the defendant left the store.
Mr. Belko testified further that as soon as the men had gone he instructed his wife to call the police and he then ran out a side door and saw the men enter an alley; that the men then entered a two-tone gray Nash and turned left on Gasconade Street. Mr. Belko knew from the traffic signals in the area that the car would have to pass the intersection of Dewey and Meramec Streets and he obtained the aid of a passing motorist who drove him immediately to that intersection. They arrived at the intersection at the same time as the Nash and almost collided with that car. Mr. Belko saw that the driver of the car was Rose; 'he was so close to me in that car I could have reached out and touched him.' Mr. Belko followed the car for a short distance and wrote down what he thought to be the license number and then returned to the drug store where he gave the information to the police. The license number he gave the police was E56-833 which he stated was correct except for the last digit.
At 9:55 p. m. police officer Donald E. Strate saw two-tone gray 1950 Nash with license No. E56-830 parked in a bus zone and arrested the three occupants thereof who were the defendant, Orlan Rose, and Glenn Savage. The defendant was immediately identified as a participant in the robbery by Mr. and Mrs. Belko and by Raymond Rhode, all of whom repeated the identification at the trial. Mr. and Mrs. Belko also identified Rose as being the man who had the gun during the robbery.
As soon as the occupants of the automobile were arrested a search was made of the car and a .38-caliber revolver and a box of shells were found under the front seat. The revolver was fully loaded and cocked at the time it was found. At the trial the revolver found in the car was identified by Mr. Belko as the one held by Rose at the time of the holdup. A new ten-dollar bill was found in the glove compartment of the car. Various items of clothing which the witnesses identified as having been worn by Rose and the defendant at the time of the robbery were either being worn at the time these men were arrested or were found in the automobile.
Defendant at the trial testified that he lived in Kansas City; that he, accompanied by Rose and Savage, had left Kansas City shortly after midnight on the morning of June 12 and had driven to St. Louis in an automobile furnished by Rose. He testified that they had spent the day sleeping and driving around in St. Louis and were at the South Side Cafe (3818 S. Broadway, St. Louis) from about 8 p. m. until after 9:30. Telephone records and other evidence indicated that defendant made a long distance call to his mother in Kansas City at 9:30 p. m. He denied that he participated in the Belko robbery and relied upon the testimony that he was in the South Side Cafe at the time of the robbery to establish his defense of alibi.
Defendant has filed no brief and we are therefore required to review the assignments in his motion for new trial. One of those assignments is that the court erred in overruling defendant's motion for judgment of acquittal because the evidence showed conclusively that no force or violence was used on the person of Mr. Belko and that he was not in fear of any immediate bodily injury, and another related assignment is that the court erred in failing to give an instruction on the lesser offense of stealing less than $50, which contention is based upon the alleged proof that Mr. Belko was not in fear at the time the money was taken.
The transcript in this case is quite unusual in that it contains the complete testimony of Mr. Belko as it was given on three separate occasions. He of course, testified fully concerning the details of the case at the trial in the circuit court. At the trial he stated that he was afraid when Rose pointed the gun at him and for that reason gave him the money. Defendant sought to impeach that testimony by obtaining Belko's admission that he had given certain answers to certain questions at the preliminary hearing which indicated that he was not afraid. After those questions and answers were read the State, without objection on the part of defendant, read in evidence all of the testimony given by Belko at the preliminary hearing. Also, during the cross-examination of Mr. Belko, the defendant used certain questions and answers appearing in a deposition of Mr. Belko taken by the defendant on September 21, 1957, in an effort to impeach certain of his testimony. Thereafter, the State, without objection, read the entire deposition into the evidence.
The contentions heretofore mentioned are based upon the following testimony of Mr. Belko given at the preliminary hearing:
'Q. Let me ask you, Mr. Belko, [when] he pointed this gun at you, you were referring to in these conversations, were you in fear of the man? A. When he first entered I was in fear for my wife, the longer he stayed, and the more scared he got, he was shaking like a leaf when he started to leave.
'Q. Then you weren't in fear? A. No, I wasn't in fear at the end, I was almost convinced he would not shoot me because he said to me, 'I don't want to kill.' * * *
'
'
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Later in the preliminary the following question and answer appears:
In his deposition, Mr. Belko, when asked whether he experienced fear at the time of the holdup, answered: When pressed to explain his testimony at the preliminary hearing he gave the following additional answers:
At the trial Mr. Belko testified to the following:
Section 560.120 provides that 'Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person * * * shall be adjudged...
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