State v. Peters, 35876.

• Decision Date: 20 December 1938
• Docket Number: No. 35876.,35876.
• Citation: 123 S.W.2d 34
• Parties: STATE v. PETERS.
• Court: Missouri Supreme Court

123 S.W.2d 34

STATE v. PETERS.

No. 35876.

Supreme Court of Missouri, Division No. 2.

December 20, 1938.

Appeal from Circuit Court, Knox County; Walter A. Higbee, Special Judge.

William Peters was convicted of robbery in the first degree, and he appeals.

Affirmed.

Ben Ely, of Hannibal, Gray Snyder, of Palmyra, and Paul K. Gibbons and Tom B. Brown, both of Edina, for appellant.

Roy McKittrick, Atty. Gen., and Tyre W. Burton, Asst. Atty. Gen., for the State.

COOLEY, Commissioner.

Appellant, defendant below, was convicted of robbery in the first degree, sentenced to five years imprisonment in the penitentiary, and has appealed. He challenges the sufficiency of the evidence and complains of the giving and refusal of instructions. The offense is charged to have been committed at Edina, in Knox County, on the night of September 9th, 1936. Defendant Peters and one Roy Reidel were jointly charged with the offense. A severance had been granted and Peters, in this case, was tried alone. The state's evidence tended to show the following:

On the night in question some fifteen or twenty men were congregated in an old barn near the public square in Edina engaged in gambling, mostly crap shooting, though some were playing poker. Among those present was Frank Sheets, the man charged in the information to have been robbed of $100. At about 11:30 P. M. a man, identified as Reidel, entered the barn, displayed a pistol, and ordered the men present to put up their hands and line up against the wall. That command being complied with he ordered one of those men, named Leckbee, to search all present, take their money and place it on the crap table, which was done. Approximately $100 was thus taken from Sheets' pockets, while Reidel covered the men with his pistol. Reidel then gathered up all the money which had thus been taken from those present, several hundred dollars in all, backed out of the barn, still exhibiting his pistol and telling those present not to be in a hurry to come out, and disappeared. While this was going on Leo Collins, his brother-in-law, Heffernan, and "Red" Hamlin approached, from the outside, the entrance of the barn. It appears the barn was entered through "double" sliding doors, which at the time were open four or five feet and light was shining through that opening from inside. Collins, the only one of those three called as a witness, testified that, as they approached, defendant Peters was standing "right at the entrance," in the light, but, as we understand his testimony, outside the doors; that he recognized defendant, whom he had known about twenty years; that defendant had a pistol in his hand; that as he and his companions approached and when they got near defendant the latter backed away eight or ten steps, accosted Hamlin and said to him "Come down here a minute," which Hamlin did; that he, Collins, went to the entrance of the barn, saw the men inside with their hands up, stepped back, and about that time defendant "hollered and says `You boys get across on the other side of the street'", addressing, as witness understood, him and Heffernan; that he and Heffernan went across the street, stopping there, and after a few minutes were there joined by Hamlin, who in the meantime had been engaged in conversation with defendant. It seems Collins and his companions then left the scene.

Sheets, in addition to detailing the occurrences in the barn, testified that after the robbery he attempted to find the sheriff and, failing in that, he got a friend, Orville Morgret, to drive him to Palmyra, where defendant lived. They reached Palmyra about three o'clock Thursday morning, September 10th. (The robbery had occurred on Wednesday night, September 9th.) He saw defendant and Reidel together eating a lunch at a filling station at or near the edge of the city but did not then stop to speak to them. After seeing and talking to the night Policeman, Tiel, and the sheriff, he and Morgret returned to the filling station but defendant and Reidel had left. He and Morgret then went to defendant's home, Sheets aroused the inmates and asked if defendant was there and if he might see him, and soon defendant came out. While waiting for defendant to appear Sheets examined defendant's car and found the radiator and hood hot. According to Sheets' testimony he asked defendant where he had been all night and the latter said he had been at home most of the night. Sheets told defendant there had been a robbery at Edina "and I have been informed that you was the gentleman that was on the outside door." Defendant denied it. After talking "quite a little bit" Sheets concluded it was useless to talk longer with defendant and went back to Edina. About eleven o'clock A. M. that day, Thursday, he met defendant at Edina. They began talking about the holdup and defendant said to him "Why don't you stop that check on old man Williams and let him fight us?" Sheets said, "Who is us?" Defendant said, "I mean I know something about it, but I wasn't in on it." By way of explanation we state here that Sheets testified a man named Williams, who seemed to be presiding over the crap game, had cashed a check of $121 for Sheets during the crap game, Sheets having received the check for some cattle he had marketed.

Pursuing Sheets' narrative, he said he again saw defendant, with one Ethel Johnson, in Edina, on Friday, September 11th; that defendant and Ethel Johnson were in a car and wanted him to take a ride, giving as a reason that "they didn't want a lot of notoriety on the street;" that he declined, and told defendant it was his money he was after; that defendant asked if he, Sheets, "was scared of him," to which he replied that he was not but was looking for his money; that defendant said "When I start paying you I have convicted myself," to which he replied "I can't help that, but I am going to have my money;" that after some more talk defendant, on that occasion, gave him $50, saying it was all he then had. Sheets testified he saw defendant again the next morning, Saturday, September 12th, in Edina, and defendant gave him $25 more and "said he would have to have four or five days on the balance of it, and I told him it would be all right." Sheets testified he never got the balance, and apparently he did not again see defendant prior to the latter's arrest.

Tiel, the Palmyra police officer, testified he saw defendant and Reidel drive up to the filing station above mentioned together in the early morning of September 10th.

No witness other than Collins testified to seeing defendant in Edina the night of September 9th. All of those in the barn at the time of the robbery who were called as witnesses testified they did not see defendant in the barn, or at all.

The defense was an alibi. Defendant, testifying for himself, said he was at the home of his brother at LaBelle, sixteen miles east of Edina, from about nine o'clock P. M. until nearly 12:00 the night of September 9th, and went from there to Palmyra, where he lived. He was corroborated by said brother as to the time spent at the brother's house and by a neighbor, Fowler, who said he was visiting at the brother's home that night. Raymond McReynolds testified that he sold defendant some gasoline that night. He had gone to bed and had been "partly asleep" when he was aroused by defendant who asked to buy the gasoline, saying he thought he did not have enough to get to Palmyra. McReynolds did not look at a time piece but thought it was about eleven or twelve o'clock when he sold defendant the gasoline. He said defendant was alone and left going eastward. That would be toward Palmyra.

Defendant denied having paid Sheets any money. In this he was corroborated by Ethel Johnson as to the fifty dollars Sheets claimed defendant had first paid him, she having been with defendant at that time. Defendant testified he went to Edina on September 10th and 11th because Sheets had told him at Palmyra that Hamlin and another whose name he then refused to divulge had informed him that he, defendant, was the "lookout" at the robbery and he wanted to learn who the other alleged informant was and confront both of them but that Sheets, at Edina, recanted as to Hamlin and would not say who had given him the information. He said he went to Edina on the 12th in pursuit of his business of automobile salesman.

Defendant introduced some evidence other than his own testimony tending to contradict portions of the testimony of Collins and Sheets but as this could only affect the weight and credibility of the testimony of those witnesses, which was a question for the jury, it need not be detailed.

The court did not err in overruling defendant's demurrer to the evidence. It is not the province of this court on appeal to pass on the weight of the evidence. Our function is only to determine whether there was substantial evidence, if believed by the jury, to sustain a verdict of guilty. State v. Hart, 331 Mo. 650, 56 S.W.2d 592; State v. Scobee, 331 Mo. 217, 53 S.W.2d 245, 251. And it is well settled that in ruling a demurrer to the evidence all substantial evidence offered by the state tending to implicate the accused should be taken as true and every legitimate inference which may reasonably be drawn from such testimony should be indulged. State v. Henke, 313 Mo. 615, 627, 285 S.W. 392, 395; State v. Smith, 329 Mo. 272, 44 S.W.2d 45, 49 [5]. Thus considered the evidence shows that while the actual robbery was being committed by Reidel in the barn, defendant was just outside and near the entrance with a pistol in his hand, apparently standing guard or on watch to prevent interference or give...