State v. Pflugradt

Decision Date01 February 1971
Docket NumberNo. 25480,25480
Citation463 S.W.2d 566
PartiesSTATE of Missouri, Respondent, v. Thomas L. PELUGRADT, Appellant.
CourtMissouri Court of Appeals

Downs & Pierce, John E. Downs, St. Joseph, for appellant.

Hugh A. Sprague, Pros. Atty., Donald E. Parker, Asst. Pros. Atty., St. Joseph, for respondent.

SHANGLER, Presiding Judge.

Defendant Thomas L. Pflugradt was charged under Sec. 559.180, V.A.M.S., with assault with his hands and fists with malice aforethought upon David Ross Stout, the complaining witness, with the intent to do him great bodily harm. The jury found defendant guilty of common assault and assessed his punishment at a fine of $100.00 and three months' imprisonment. The court entered judgment accordingly and committed defendant to the Buchanan County Jail.

On this appeal, defendant challenges the sufficiency of the evidence to sustain the conviction. He also charges the trial court erroneously excluded certain statements as hearsay, although they were properly admissible as part of the res gestae.

The State's case tended to show these facts: David Ross Stout had concluded his day's work at 11:00 A.M. on November 27, 1968. He first went home and then, with his family, went to the home of his brother-in-law located on the north side of Olive Street in St. Joseph, Missouri. Between this home and 18th Street to the east were located a Plate Glass Company and then a laundromat, which occupied the northwest corner of 18th and Olive. Harold's Tavern occupied the northeast corner of that intersection, and the L & M Tavern its southwest corner. The main entrance to the L & M Tavern was angled across its northeast corner and was separated by a plate glass window from its other entrance to the west which opened onto Olive Street.

Stout testified that about noon, he crossed the street to the L & M Tavern, cashed his paycheck, had a beer, and returned to his brother-in-law's. He returned to the tavern about 5:30 P.M. and remained until 8:00 P.M., drinking five per cent beer shooting pool all the while, when he took a bartender home. He returned once again, resumed the same activities, so by the time he left through the main entrance at 1:15 A.M., he was in that middling state somewhere between near sobriety and near drunkenness. He walked west and then across Olive and as he reached the sidewalk, just a few feet west of the laundromat, he was accosted by a man in a red jacket (later identified as Gerald Nigh), flourishing a pistol with his left hand. Two other men came up from behind on either side of Stout; each grabbed one of his arms. (Defendant Pflugradt was later identified as the man restraining his left arm, and Paul Dryer, his right arm.) With his right hand, Nigh struck Stout 'below the belt' and Stout buckled. As he was falling to the ground, the other two, still holding his arms, struck Stout with their fists 'all around (his) back and sides'. Stout moved his body in an attempt to avoid the blows, and in so doing, saw defendant strike him. The area was illuminated by a street light across the street on Olive as well as by the interior lights of the laundromat coming through its plate glass window. Stout fell to the ground along the sidewalk and gutter between two cars, and as he lay there, was kicked and cursed by all three assailants. Nigh was urging: 'Kick him, kill him, kick him', while defendant called him a 'son-of-a-bitch'. The, at Nigh's direction, he was dragged into the laundromat and left on the floor and was not molested thereafter. He heard Nigh say: 'You guys just quit, and I'll call this in and take care of it. Let me do the talking'. Stout was familiar with the interior of the laundromat, having done his laundry there, and heard Nigh place money in the telephone but heard no conversation. Stout then heard 'a lot of commotion coming in the building', and went to the sink at the rear of the building to wash the blood from his head. He was bleeding also from the ear, eye, about the face and inside the mouth. After an unspecified lapse of time, the police arrived. Stout reported to them that Nigh had a gun. They removed it from his person and arrested him, together with Pflugradt and Dryer. Stout was removed to a hospital by ambulance where his lacerated left ear was repaired and a torn tear duct and other injuries treated.

Through the window of the L & M Tavern, John Cunningham and Clarence Jones witnessed a fracas and testified as to what they saw. Cunningham had arrived at the tavern about 12:15 A.M. He had come to see his father who tended bar there. He had not known Stout before he was introduced to him that morning. A few minutes before the 1:30 A.M. closing time, he saw Stout leave. Cunningham then looked through the tavern front window in the direction of the laundromat and saw four men, two wearing white shirts beating another one between them with their fists, and a fourth man, wearing a red jacket then participating with the other two. Although it was 'pretty light' in the area of the laundromat, because of the distance, Cunningham could not identify the assailants or the man beaten, but 'had an idea who it was'. Cunningham then went into the street and saw all three men kicking at the other, by now prostrate along the curb and gutter, but was not certain whether the blows were actually struck. He heard no words spoken by anyone. He then thought the man in the red jacket was about to get into his car, so he shouted its license number to Clarence Jones who was nearby. Instead, the red-jacketed man and the other two dragged the beaten man into the laundromat. Cunningham then saw the red-jacketed man pick up the telephone receiver. The police then arrived and took all three assailants into custody.

Clarence Jones also looked through the window in the direction of the laundromat and saw a man lying 'off the curb' and two others, wearing 'light jackets', apparently kicking him. Because of the distance, he could not tell if the blows actually struck. A fourth man, in a red jacket, was standing by, but struck no blows. It was Jones who then telephoned the police. He went outside, but by then, the man under assault had been taken inside the laundromat. As the three assailants got into a car, Jones started to take down the license number, but did not complete doing so because the three returned to the laundromat. The police arrived a minute and a half or two minutes after Jones had telephoned. Jones then went to the laundromat, stood in its doorway and saw all four men inside, including the one who had seemingly been beaten. He was wiping blood from his face which was bleeding badly. At no time did Jones see the red-jacketed man with a gun, nor hear any conversation spoken, nor see any of the three make any attempt to stop the other from striking the fourth.

Officers Willard Hunt and Dale Watkins, both of the St. Joseph Police Department, were summoned separately to the scene of the disturbance. Hunt arrived about one minute after having received the call. He found Stout, Nigh, Dryer and defendant Pflugradt in the laundromat. Stout, standing at the rear wall, had been severely beaten and was bleeding from the mouth, along the nose and from his ear. The other three were standing by the telephone. Upon inspection, he found blood smeared across the back of Pflugradt's knuckles, but none on the palms of his hands. The toes of his shoes were also splattered with blood. Pflugradt was neatly dressed, however, and offered no resistance. Hunt searched Nigh, removed a holstered revolver from his person, and arrested him.

Officer Watkins arrived as Officer Hunt was entering the laundromat. He, too, found Stout and the others inside, and, he, too, found that Stout had been beaten and was bleeding from his ear, mouth and eyelid. His examination of Pflugradt's person also disclosed that defendant's knuckles and shoes were smeared with blood.

The defendant's evidence was to the effect that at about one o'clock that morning, after having been in Harold's Club (cater-corner from the L & M Tavern across that jogged intersection) intermittently since one o'clock the previous afternoon, he stepped out for a breath of air with Dryer with whom he had been playing pool. He and Dryer became embroiled with a Mike Kelly whom he then struck, but someone from the L & M Tavern broke it up. They returned to Harold's Club. Gerald Nigh was also there. The defendant had seen him, spoke to him, and knew him to be a deputy sheriff. About closing time, defendant and Dryer left. They thought they saw Kelly again and gave chase unsuccessfully. As they were returning to Harold's Club for more beer, Nigh shouted to them from in front of the laundromat. There they saw a man, not known to them, lying on the ground. Nigh asked them to carry the man into the laundromat while he telephoned the sheriff's office. They complied. About then, the police arrived. Defendant denied ever striking or kicking the man he had helped move into the laundromat.

Gerald Nigh, who had been employed as a deputy to the Sheriff of Buchanan County for about a year, had come into Harold's Club about 12:30 A.M., dressed in a red jacket and armed with his service revolver. While there, he spoke to defendant and Dryer whom he knew. About 1:30 A.M., as he left Harold's Club (defendant and Dryer having preceded him in leaving), he thought there was some commotion across the street by the L & M Tavern, 'thought it was Mr. Pflugradt and Mr. Dryer and I yelled at them'. They did not respond but ran past the L & M Tavern, another man, also running, preceding them. Nigh went to his car parked in front of the laundromat, heard a noise, and saw a body lying on the sidewalk. He turned and saw defendant and Dryer standing on the corner where the laundromat was situated and asked them to help take the man inside. They did, by dragging him. Nigh then telephoned the sheriff's office. As he hung up, the police arrived. Nigh testified the man's...

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11 cases
  • State v. Parton
    • United States
    • Missouri Supreme Court
    • December 11, 1972
    ...or at the time of the trial, or that his mind or memory or powers of observation were affected by the habit.' State v. Pflugradt, Mo.App., 463 S.W.2d 566, 570(2); State v. Booth, Mo., 423 S.W.2d 820, 823. However, the record in this case does not call for further consideration of the genera......
  • Lipp v. Ginger C, L.L.C.
    • United States
    • U.S. District Court — Western District of Missouri
    • January 19, 2017
    ...he was intoxicated at the time of the event testified to, unless he was so intoxicated as to have been insensible." State v. Pflugradt , 463 S.W.2d 566, 570 (Mo. App. 1971) (citations omitted). Each of the five witnesses noted in Plaintiffs' Motion testified at their deposition that, on the......
  • State v. Walker, 57135
    • United States
    • Missouri Supreme Court
    • September 11, 1972
    ...jury to prejudge defendant on his alleged past conduct.' Under his point he cites State v. Hook, Mo., 432 S.W.2d 349, and State v. Pflugradt, Mo.App., 463 S.W.2d 566, both dealing with the admission of statements under the res gestae This testimony of the prosecuting witness as to what appe......
  • State v. McClure
    • United States
    • Missouri Court of Appeals
    • January 8, 1974
    ... ... State v. Pflugradt, 463 S.W.2d 566, 572(7--9) (Mo.App.1971). It is the first kind of statements or declarations which are admitted as res gestae and which are the kind here in evidence that ... are illustrated in the case of State v. Talbert, 454 S.W.2d 1, 3(2) (Mo.1970), wherein it is pointed out that where such ... ...
  • Request a trial to view additional results
2 books & journal articles
  • Section 23.74 Spontaneous Declarations and Excited Utterances
    • United States
    • The Missouri Bar Criminal Practice Deskbook Chapter 23 Evidence
    • Invalid date
    ...the statement relates to the circumstance of the occurrence. State v. Mahone, 699 S.W.2d 60, 62 (Mo. App. E.D. 1985); State v. Pflugradt, 463 S.W.2d 566, 572 (Mo. App. W.D. 1971). The statement or utterance must be a reaction to the event itself and not to the intervention of the police. St......
  • Section 8.7 Physical Malady or Disability
    • United States
    • The Missouri Bar Evidence Deskbook Chapter 8 Competency of Witnesses
    • Invalid date
    ...of the witness incomprehensible or limit the witness’s ability to perceive would a witness be incompetent to testify. State v. Pflugradt, 463 S.W.2d 566, 570 (Mo. App. W.D. 1971). Thus, people who are blind, deaf, or mute can testify absent a showing that they are not competent under the ge......

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