State v. Rickart, 33968.

• Decision Date: 30 March 1935
• Docket Number: No. 33968.,33968.
• Parties: STATE v. RICKART.
• Court: Missouri Supreme Court

81 S.W.2d 309

STATE v. RICKART.

No. 33968.

Supreme Court of Missouri, Division No. 2.

March 30, 1935.

Appeal from St. Louis Circuit Court; Fred J. Hoffmeister, Judge.

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

Affirmed.

Thos. E. Dowling, of St. Louis, for appellant.

Roy McKittrick, Atty. Gen., and Olliver W. Nolen, Asst. Atty. Gen., for the State.

ELLISON, Judge.

By an information drawn under the habitual criminal statute alleging a prior conviction of another robbery, the appellant was charged with robbery in the first degree with a dangerous and deadly weapon, committed on June 10, 1933, upon one Lynn Carmichael, an employee of Fritz & Clancy, Inc., who conducted an establishment known as the Mutual Cigar Store with a horse racing betting handbook in connection, at 4061 Olive street in St. Louis. The state made no proof of the prior conviction and the case was submitted to the jury under the general statute fixing the punishment for robbery in the first degree, section 4061, R. S. Mo. 1929 (Mo. St. Ann. § 4061, p. 2863), instead of the habitual criminal statute. By their verdict the punishment was assessed at imprisonment in the penitentiary for ten years.

The appellant has filed no brief. His motion for new trial contains four assignments of error presenting three points: (1) That his demurrers to the evidence at the close of the state's case and of the whole case should have been sustained; (2) that the assistant circuit attorney's opening statement was unfair; and that the court's instruction to the jury withdrawing the issue as to the prior conviction was prejudicial because it was too mild.

The respect in which appellant claims the state's evidence was insufficient is that it failed to establish the identity of the appellant as the robber. The cigar store and betting establishment were on the ground floor on the north side of Olive street a few doors east of Sarah street. The cigar department was at the front of the building with a partition between it and the space used for the handbook; entrance to the latter was through the cigar store. The betting room was about 50 feet long and 25 feet wide. It contained four large tables and 30 or 35 chairs. Back of it another room was partitioned off and used for the storage of supplies, mops, cleaning equipment, and the like. There was an exit from the betting room through this rear room into the alley or court behind the building.

The robbery occurred about 3 o'clock in the afternoon. There were from 15 to 35 people in the betting room when the robber entered from the cigar store and announced it was a "stick-up." He held a handkerchief in front of his face with one hand and with the other waved a revolver slowly back and forth and ordered every one to hold up his hands and keep his head down; and then required all to line up facing against the wall. Approaching Carmichael, the bookkeeper, who was holding his head down, the robber compelled him to turn over the money in the cash drawer and in his pocket amounting to $75, in bills. There was a $20 bill; Carmichael could not remember whether there was also a $5 bill; and the rest was in $1 bills. The robber threatened Carmichael, asserting the money he had produced was not all he had. Just after the robber had got the money a policeman named Brown appeared at the front entrance with a pistol and gave a command. The robber retreated toward the rear door, keeping the officer covered with his pistol, and dashed into the back room. There was a fusillade of pistol shots, the officer started in pursuit, slipped and fell to the floor by the rear door, and went on out chasing the robber.

Besides the policeman, Brown, five persons who were in the handbook room at the time of the robbery testified for the state. Owing to the fact, as stated, that the robber held a white handkerchief over the lower part of his face and compelled them to hold their heads down and stand facing against the wall, they were unable to give much of a description of him. Not only that, but most of them got down on the floor when the shooting started. All agreed that he wore white, light or seersucker pants, a white or light shirt and a white or linen cap. The bookkeeper, Carmichael, and Officer Brown said he had no necktie and that his shirt collar was open. Carmichael also said he was medium small in stature. One of these witnesses, William Love, stated the revolver which the robber was flourishing was nickle-plated.

Officer Brown testified that when he and his partner, Officer Young, entered the betting room, the robber retreated toward the rear flourishing a nickle-plated revolver, and each fired three shots at him. The robber fired three or four shots at them from the back room. Young went out the front door and around the corner to approach the building from the rear. Brown pursued the robber back through the betting room, but was delayed a little when he slipped and fell to the floor where water from a water cooler had been spilled on the linoleum near the rear exit. When he got into the court he found Officer Young there. An areaway led off to the north and some little distance therealong was a blind areaway or cul-de-sac extending west. Here the two officers found the defendant in a crouching position. He was dressed identically like the robber in the handbook room. He said "Don't shoot, you got me." They placed him under arrest, but he reached toward his left rear pocket. Officer Brown struck him on the head and they searched him finding a nickle-plated revolver in that pocket. At the police station further search revealed in his left hand side trousers pocket a white handkerchief in which was one $20 bill, one $5 bill and fifty $1 bills. There was also a 25-cent piece.

At the police station the appellant was questioned by Officer Brown and other officers. He declined to sign a statement, but in answer to a question as to how he came into possession of the revolver, the money, and the handkerchief, he said "Well I was in a home brew joint, I went there about noon." He stated this "joint" was in a one-story building in the 4000 block on Washington boulevard and that he left it about 3 o'clock and came to the place in the areaway where the officers found him. He said he was urinating there when an unknown man came up to him and said "Here is a pistol, here is a white handkerchief, and here is the money." Officer Brown inquired "Will you take me to this one-story brick building, or one-story building in the 4000 block Washington?" The appellant answered "I will not." Being asked if he was drinking, he said he was, but declined to say with whom. Officer Brown testified he had walked a beat past the 4000 block on Washington boulevard for over two years, and that there was not any one-story building there. He further said the time which elapsed between the holdup and the capture of the appellant in the areaway was only about a minute, but he admitted the revolver they found on appellant was fully loaded. Appellant's counsel stressed this point in cross-examination because of the previous testimony of Officer Brown and another witness that the robber had fired three or four shots from his revolver as he went through the rear room. Officer Brown also admitted that on a search of the areaway they found no ejected shells.

Carmichael, the bookkeeper, did not follow the officer out into the back alley and did not see the appellant again (if the appellant was the robber) until about an hour later at the police station. He testified the appellant was about the same size as the robber but refused to identify him positively, saying he would not swear either that he was or was not, because the robber's face had been concealed by a handkerchief. Three of the witnesses who were present when the robbery occurred followed Officer Brown out behind the building. One of them, a laundry driver named Moss, who dressed in a white uniform and cap, was shot by another policeman, evidently because he was mistaken for the robber. The testimony does not show what officer did it. The other two witnesses, one named Weinberg and the other named Love, saw the appellant after the officers had taken him into custody. He was dressed the same as the robber, but they said they would not affirm or deny that he was the robber because the latter's face was covered during the holdup.

Right after the arrest Weinberg went to the City...