State v. Pughe

• Decision Date: 11 May 1966
• Docket Number: No. 1,No. 51510,51510,1
• Citation: 403 S.W.2d 635
• Parties: STATE of Missouri, Respondent, v. John Leonard PUGHE, Appellant
• Court: Missouri Supreme Court

Page 635

403 S.W.2d 635

STATE of Missouri, Respondent, v. John Leonard PUGHE, Appellant.

No. 51510.

Supreme Court of Missouri, Division No. 1.

May 11, 1966.

Motion for Rehearing or for Transfer to Court En Banc Denied

June 13, 1966.

Norman H. Anderson, Atty. Gen., Jefferson City, Carl R. Gaertner, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Commodore M. Combs, Jr., Kansas City, for appellant.

HOUSER, Commissioner.

John Leonard Pughe, convicted by a jury of robbery in the first degree, § 560.120, V.A.M.S., and sentenced to 8 years imprisonment, has appealed from the judgment of conviction.

The first question is whether there was a fatal, material variance between the charge in the information that appellant took $17 from Gussie Goebel, 'the money and personal property of said Gussie Goebel,' and the state's proof that the $17 taken belonged to Western Union Telegraph Company. The robbery occurred at an office of the telegraph company. At the time of the robbery Gussie Goebel was an employee of the company, in sole charge of the office. The robber entered the office, handed Mrs. Goebel a note threatening to endanger her life by the use of 'nitro' and demanding that she 'hand over the cash.' He had an article in his hand which looked like a tube. Under this compulsion she opened the cash drawer and the robber took the company money therefrom and fled. It is immaterial to the validity of the information whether Mrs. Goebel was the owner or the legal custodian merely of the $17 taken in the robbery. State v. Huffman, Mo.Sup., 238 S.W. 430. The ownership of the property taken may be laid in the one in possession of the property at the time of the robbery, whether he be clerk, servant or other bailee. State v. Johnstone, Mo.Sup., 335 S.W.2d 199, 203. 'The gravamen of the offense consists in the taking by violence, or by putting in fear, the money or property of another from one who was at the time in the lawful possession of the same. * * * The words of the statute, therefore, defining those from whom the unlawful taking of property shall constitute robbery, may be disregarded as words of description rather than of limitation. * * *' McCarthy v. Eidson, Mo.Sup., 262 S.W.2d 52, 53, 54.

The next question is the legal sufficiency of the testimony given by Mrs. Goebel purporting to identify appellant as the culprit. The robber was in the telegraph office in the presence of Mrs. Goebel for a period of from two to four minutes, and was within two to three feet of Mrs. Goebel when he reached for the money. There is no evidence that he was masked. She had ample opportunity to observe him, and did observe many details, including the fact that he carried in his hand an article which was brown and looked like a tube. Mrs. Goebel gave the police a description of the man (five feet eleven inches in height, about 160 pounds in weight, wearing a blue shirt and dark trousers). She told the police that she would be able to identify him by his features and his height. Later Mrs. Goebel picked appellant out of a lineup of three men at the police station, after the three stepped forward one at a time and gave their names and addresses. She immediately identified appellant as the robber and signed a statement positively identifying him 'by his physical build and speech.' She also saw him at the preliminary hearing. At the trial she pointed him out in the courtroom. She testified that she was 'sure' he was the man; that she would know and would not forget anyone who came in and robbed and frightened her as badly as he did. She identified him not only by the means she used at the police station but also by 'his facial features.' She had noticed 'a peculiar kind of frown when he came into the office,' a frown which appellant had when he was in the lineup. Aside from the confession, in which appellant identified himself as the robber, the foregoing evidence was sufficient to submit to the jury the question of the identity of appellant as the robber. The accuracy and credibility of the testimony of Mrs. Goebel was for the jury. State v. Clark, Mo.Sup., 331 S.W.2d 588, 590(3).

Appellant's principal complaints are that the court erred in permitting the police officers to recite to the jury the incriminating oral admissions made by appellant and refer to his signed confession, and in failing to submit to the jury by appropriate instructions the question whether his confessions were given voluntarily.

Preliminary to the admission of the self-incriminating evidence the court held a hearing in the absence of the jury to determine whether the confessions should be admitted in evidence. At that hearing Detective Reed of the Kansas City Police Department testified as follows: On the night after the robbery Reed questioned appellant at police headquarters. Sergeant Schump, who was also on duty at the time, was in and out of the room from time to time, but Reed and appellant were alone in the questioning room most of the time. Reed started talking to appellant at 11:30 p.m. Appellant was in the room for three hours. Reed began questioning appellant with reference to an attempted burglary of the Jefferson Supermarket. After talking to him for fifteen minutes or so Reed started to prepare a typewritten statement with reference to the supermarket matter. At that time Reed informed appellant that he did not 'have to make any kind of statement at all and that it was his right to consult with anyone he chose.' Reed also advised appellant of his right to counsel. Appellant did not at any time make a request to have counsel. Appellant told Reed that he did not want to 'live like this--the way he had been living' and that he 'wanted to get it off his chest.' Appellant was 'very willing' to give Reed a statement and tell him 'all about this and some other things.' After the first fifteen minutes of questioning about the supermarket matter, at about 11:45 p.m., and before Reed had mentioned the robbery at Western Union, appellant volunteered the information that he had committed the robbery at Western Union. Reed inquired as to the details. Reed then went to the police records, pulled out the reports of the Western Union robbery, and checked the information appellant gave him with the information contained in the police reports. The details were identical. Reed then prepared a written statement with reference to the Western Union robbery. Before doing so Reed again advised appellant of his constitutional rights; told him that he did not have to make a statement at all in writing, and that he had a right to counsel. Reed asked him if he wanted to call anyone and he said 'No,' that there was no one he wanted to call. At no time did Reed make any threat or any kind of a gesture toward appellant or have any bodily contact with him. After the written confession was signed and at about 2:30 a.m. appellant was conducted to his cell.

Officer Linhart of the police department testified at the hearing from which the jury was excluded that the day after appellant gave his written confession he interrogated appellant for possibly an hour, during which appellant 'orally admitted the Western Union robbery.' It was a 'voluntary admission.'

At that same hearing (outside the hearing of the jury) appellant testified that he was picked up for investigation and questioned; that when the questioning by Detective Reed began appellant asked Reed if he did not have any rights and if he could not call an attorney or someone to help him; that he was a stranger in town and would like to talk to someone. He said Reed answered that there was no one he could talk to; that he was a stranger in this town and had no rights. The questioning lasted for two or three hours, beginning late at night. Appellant testified that Reed kept questioning him and asked him to sign a 'statement to the robbery' and told him he was going to make a statement 'one way or the other'; that appellant told Reed he wasn't going to sign anything; that he was not guilty; that finally at 2 a.m. Reed 'got tired of questioning' him 'and he hit (appellant) in the face with his open hand * * * with a pretty good force and' appellant 'signed a statement when he drew back.' Appellant stated that he agreed to sign the statement because he 'didn't want to get beat up.' He swore that when he was arrested at 8 p.m. the previous night he was threatened, knocked down, kicked two or three times in the legs and back, and beaten by police officers and handcuffed. He said he later had brownish bruises on his side, right lower back and legs as a result.

At the conclusion of the hearing appellant's counsel orally moved for the suppression of the statements made to the officers. That motion was overruled. The court stated that 'observing the defendant and his demeanor * * * leaves no question in my mind whatsoever what the true facts were with respect to any voluntariness of any statement made by the defendant,' called the jury back, and permitted the state to proceed in the hearing of the jury to introduce in evidence the testimony of the officers with reference to the written and oral confessions of appellant. Officer Reed testified before the jury that while talking to appellant about another matter appellant volunteered the information that he had robbed the Western Union office, and recited the details of what appellant had told him about the commission of the Western Union robbery. He further testified that appellant signed a waiver of search and recounted how he searched appellant's room and discovered a Schick razor wrapped in a piece of brown paper; that the interrogation commenced at 11:30 p.m. and lasted until 2:30 a.m.; that what appellant said was reduced to writing and signed by him; that before the questioning started at 11:30 p.m. appellant had been detained approximately an hour. The previous testimony of Reed that he informed appellant of his constitutional rights was not brought out before the jury....