State v. Peak

• Decision Date: 23 February 1934
• Docket Number: No. 33204.,33204.
• Citation: 68 S.W.2d 701
• Parties: STATE v. PEAK.
• Court: Missouri Supreme Court

68 S.W.2d 701

STATE v. PEAK.

No. 33204.

Supreme Court of Missouri, Division No. 2.

February 23, 1934.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

George Peak was convicted of kidnapping for ransom, and he appeals.

Affirmed.

Verne Lacy, of St. Louis, for appellant.

Roy McKittrick, Atty. Gen., and Frank W. Hayes, Asst. Atty. Gen., for the State.

FITZSIMMONS, Commissioner.

Appellant, George Peak, was found guilty in the circuit court of the city of St. Louis of the crime of kidnapping Alex Berg for ransom. His punishment was fixed at twenty-five years' imprisonment in the state penitentiary. From the sentence and judgment he appealed to this court. The indictment upon which appellant was tried jointly charged appellant, and also Paul A. Richards, Charles Heuer, Edward Barcume, Curtis Medlock, and Charles Tucker with the offense against Mr. Berg on November 6, 1931. Appellant was granted a severance and was tried separately.

I. Appellant concedes that the testimony was sufficient to show that the other defendants, Richards, Heuer, Barcume, Medlock, and Tucker, entered into a conspiracy to kidnap Mr. Berg for ransom; Heuer, Barcume, and Medlock being the original conspirators and actual captors, and Tucker and Richards entering into the conspiracy while Mr. Berg was being held prisoner. But appellant urges that there was no competent testimony to make a submissible case against him, and therefore that his demurrers to the evidence should have been sustained. Paul A. Richards, a codefendant with appellant, was, at the time of the commission of the crime, an attorney licensed to practice law in Missouri. The major facts of the kidnapping of Mr. Berg are stated in the opinion of this court in the disbarment proceedings here against Richards arising out of the part which Richards played in the affair. In re Richards (Mo. Sup.) 63 S.W.(2d) 672. For this reason and because appellant admits that, upon the record, the other defendants were guilty, we will state briefly the main facts, and thereafter we will summarize separately the evidence against appellant.

Mr. Alex Berg, in November, 1931, and for some years before, was a fur dealer at the northeast corner of Main and Olive streets in St. Louis. About 5:30 p. m. on Friday, November 6, 1931, he left his place of business in his automobile to go to his home in the Park-Plaza Hotel, at Kingshighway and Maryland avenue. Heuer, Medlock, and Barcume, riding in an automobile owned and driven by Medlock, followed Berg's car to a point on Lindell boulevard near Euclid avenue. There Barcume and Heuer left the Medlock car, and, at the points of pistols, they forced their way into the Berg car. Barcume, taking a front seat beside Albert Pike, Berg's chauffeur, commanded him to drive as Barcume directed. Pike did so. Heuer, seated beside Berg in the rear, covered Berg's eyes with cloth and goggles and informed Berg that he was being kidnapped for ransom. At a point on Hall's Ferry Road in North St. Louis county, Berg was transferred from his own automobile to that of Medlock and was driven to a furnished flat at 5084a Easton avenue, St. Louis, which Heuer and Medlock had rented a few days before, in pursuance of the kidnapping conspiracy.

Upon his arrival at the flat, Berg, at the dictation of his captors, wrote a letter to Mr. Ben Harris informing him that the gang was holding him for $65,000 ransom and threatened to kill him unless the money was paid. Berg wrote other letters at the command of the abductors, the object of which was to bring about his release upon payment of the ransom. Heuer and Barcume brought Richards into the case Sunday, November 8, 1931, ostensibly as attorney for the Berg family. Berg, at the order of his captors, then wrote a letter to his (Berg's) attorney, Mr. Levinson, directing Mr. Levinson to hire Richards as Berg's attorney in procuring his release and to pay Richards a retainer fee of $1,000. Levinson made payment as directed. Berg, under the same compulsion, also signed a promissory note, payable to the order of Richards, in the sum of $50,000, which was the amount of the ransom demanded, after Richards was consulted. This note was sent to and received by Richards. Berg was held as a prisoner in the Easton avenue flat from the night of Friday, November 6, 1931, until 11 p. m. November 10, 1931. He was blind-folded all the time except when he was writing dictated letters. He never saw his captors because they stood behind him when his eyes were uncovered. Medlock and Tucker guarded him by turns, pistols being within their reach. Heuer and Barcume left the flat frequently in their efforts to arrange through Richards for the payment of the ransom.

Berg was released by Heuer, Barcume, Medlock, and Tucker on the night of November 10 on a public street in St. Louis under an arrangement made by Richards with Mr. Levinson whereby Richards expected to receive the ransom in cash, the following morning. But Mr. Levinson kept the police informed of his dealings with Richards. The ransom, except the retainer fee of $1,000 paid to Richards and which was to be counted as part of the ransom, was not paid. Instead, Richards and the other accused men, including appellant Peak, were arrested soon after Mr. Berg was released.

Before we state the facts offered in evidence by the state tending to connect appellant Peak with the conspiracy, we should observe that appellant's trial attorneys made few, if any, objections that either were timely or well taken. Their usual practice was to move to strike out the testimony of a witness because it was hearsay or that it did not tend to incriminate appellant. These motions commonly were made and always overruled, sometimes at the close of the direct examination, but in most instances when appellant had progressed toward the end of the cross-examination. Counsel for appellant on appeal did not take part in the trial.

Albert Wittig at one time worked for Alex Berg in the latter's fur store at Main and Olive streets, St. Louis. Quite some time before the kidnapping Wittig left the service of Berg and went into business for himself at 109 North Main street, about a block and a half from Berg's store. Wittig dealt in hides, tallows, and disinfectants. Appellant Peak was a disinfectant salesman for Wittig. Berg knew Peak, and the testimony warrants the inference that Peak knew Berg. When Wittig opened his store, Berg called upon him and wished him well. Peak was working for Wittig at the time of the kidnapping. Arthur Bateman in 1931 was a fish dealer at 5711 Easton avenue. He was also business agent for an organization known as the Fish Dealers' Association which had its headquarters across the street at 5704 Easton avenue. Charles Heuer, one of the conspirators, worked for Bateman and made the Fish Dealers' hall his place of abode. Sometime in September, 1931, Peak visited the hall for the purpose of seeing Heuer. Bateman was there and saw Peak for the first time since both Bateman and Peak had been inmates of the Missouri Penitentiary in 1927. Peak and Heuer conversed apart for awhile and Peak departed. Peak called again that month to visit Heuer. About October 1, Edward Barcume, who, several witnesses testified, was commonly called "Blackie," visited Heuer at the Fish Dealers' hall. He made two other calls upon Heuer during October. On October 10, 1931, Bateman drove Heuer to the La Salle Hotel, St. Louis. Peak had three rooms in the La Salle, and Heuer and Bateman called on Peak in his suite that day. Heuer and Peak talked about hard times, and then the two retired to an adjoining room leaving Bateman alone. But the connecting door was open, and Bateman overheard Peak say that business had been so bad he could hardly get through the summer, but that "a party by the name of Berg would go for some easy money." Ten days later, on October 20, Heuer phoned to Bateman that he (Heuer) needed $50 and that if Bateman had that amount he should bring it to Peak's rooms. Bateman went at once to Peak's rooms in the La Salle Hotel and found Peak and Heuer there. Bateman drew from his pocket and laid on a table $49.50 made up of $33 in cash and a check for $16.50 which Bateman had received from a customer. Bateman indorsed the check. At the same time he inquired of Heuer for what purpose did he want the money. Heuer answered that Peak needed the money. Bateman replied that he did not find money growing on trees, and Heuer responded: "You do not have to worry." Peak added: "Yes, in thirty, sixty or ninety days you will be paid back." Bateman then departed, leaving Heuer and Peak together. The check for $16.50 which Bateman laid on the table in Peak's room was offered in evidence. It bore Peak's indorsement below that of Bateman. Heuer had Bateman take him to Peak's room a third time on October 26. Heuer asked Peak how things were getting on, and Peak answered: "Rotten."

Curtis Medlock, one of the defendants charged with the crime of kidnapping Mr. Berg, was a witness for the state against appellant Peak. Medlock, at the time of Peak's trial, had pleaded guilty and had been sentenced to a term of twenty-five years' imprisonment in the penitentiary. For some time prior to the kidnapping, Medlock had been in the grocery and meat business on North Twentieth street in St. Louis. He met Barcume at a market in October, 1931. They talked about hard times and branched off to the subject of kidnapping. A few days later, about October 20 (the date when Bateman carried $49.50 to Peak's rooms), Medlock, Barcume, and Heuer met, and Medlock said to Heuer that he (Medlock) and Barcume had decided that kidnapping was a pretty good...