State v. Russell, 48417

• Decision Date: 21 September 1954
• Docket Number: No. 48417,48417
• Citation: 245 Iowa 1190,66 N.W.2d 35
• Parties: STATE of Iowa, Appellee, v. Patrick S. RUSSELL, Appellant.
• Court: Iowa Supreme Court

Page 35

66 N.W.2d 35

245 Iowa 1190

STATE of Iowa, Appellee, v. Patrick S. RUSSELL, Appellant.

No. 48417.

Supreme Court of Iowa.

Sept. 21, 1954.

R. L. Fehseke, of Fort Madison, for appellant.

Leo A. Hoegh, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., and Robert N. Johnson, of Fort Madison, for appellee.

BLISS, Justice.

Donald Charles Fitterer, who was indicted with this defendant, was found guilty of first degree murder, and, as provided in the verdict, judgment was entered committing him to life imprisonment in the State Penitentiary. On appeal to this Court presented on a transcript of the record in the district court, made by the clerk of the court, the judgment was affirmed. State v. Fitterer, Iowa, 62 N.W.2d 914.

Defendant was born April 10, 1928. He never married. His mother died January 29, 1951. His father was living but he did not know where, and had not seen him since July, 1952. He had four living brothers and six sisters, but did not know where any of them lived, nor the married names of his sisters. His school attendance did not go much beyond the eighth grade. Most of his schooling was received in Eau Claire, Wisconsin, but after the family moved to Chicago, Ill. in 1941, he attended Carpenter Public School until his senior year when he was taken out to help his mother. He had worked in restaurants, and in the summer of 1952 was employed by the International Harvester Co. in the plant in Chicago, until June 26, 1952 when he quit work there.

Defendant first met Fitterer, who was then going under the name of Dale Johnson, on Monday, June 16, 1952, at Wimpy's Hamburger Grill, at Randolph and Wabash, and they were together until 12:30 that night. They met again at 10 o'clock the next morning at the Ringside Ranch at 5 North Clark St. and were together until 3 o'clock in the afternoon. They met again at the same place the following Thursday, June 19th. Defendant remembered the date because he hocked his watch and ring that day. They separated at the Ringside Ranch early Friday morning, June 20th. The chance acquaintance ripened into a close companionship, as indicated in defendant's signed statement of September 29, 1952, towit: 'I didn't see Johnson again until the following Monday. (June 23rd, 1952). After the day, I saw Johnson almost every day. We nearly always met at the Ringside Ranch. Johnson didn't have any money, and I was supplying drinking money for both of us. This close association between me and Johnson continued until a week ago today. I haven't worked since June 26, 1952. Following that, I lived off my roommate, Ralph Schloegel, at 8605 South Marshfield, Chicago. I moved out of that address on September 10, 1952.' This written statement of September 29, 1952, was a summary of an interrogation of defendant in the Judge's Chambers in the Lee County Courthouse. As defendant would reply to the questions of County Attorney Robert N. Johnson, the latter would summarize the answers to the typist. There were five others present during the interview who signed as witnesses to the defendant's signature. Hereinafter we will refer to this statement as Exhibit 4.

On September 26, 1952--the day of his arrest--at the Detective Bureau in Chicago, defendant was questioned by Robert Blair, of the Bureau of Criminal Investigation at Des Moines in the presence of Mr. Mosley, deputy sheriff of Lee County, and two Chicago policemen, all of whom witnessed the signature of the defendant to this statement, Exhibit 3.

On November 25, 1952, defendant, at his request, made another statement (Exhibit 5) which was summarized to the typist by the County Attorney, which defendant said was 'to clarify' a few matters in his two earlier statements. His signature to this paper on November 26, 1952, was witnessed by three others.

Defendant was his only witness. He testified that Johnson--as he then referred to him--on August 6, 1952 (Wednesday) asked him if he could get money enough to make a trip to Muscatine, Iowa, with him to see his ex-wife and his six-year-old daughter, and defendant told him he would go if he could borrow the money from his roommate, Ralph Schloegel. Our further statement of facts will be made without always designating the notation of the item in any of defendant's statements or in his testimony. About 8:30 on August 7th, defendant borrowed the money from Schloegel and a few minutes later so informed Johnson. In the latter's car they drove to a liquor store and Johnson cashed a check, which was not payable to him, for $19, and bought a half pint of liquor and four packages of cigarettes. A little later about 10:30 P.M. Johnson stopped the car and came back in about fifteen minutes with a nickel plated, five chamber, .32 caliber revolver, for which he said he paid $25. He said they could use it for target practice in Iowa. About two hours later defendant and Johnson left in the latter's 1939 Pontiac car. They crossed the Mississippi River into Iowa at Burlington at approximately 11 o'clock Friday morning, August 8th. Shortly after arriving in Burlington, on the direction of Johnson, defendant went to a gun shop and bought a dozen cartridges loaded with .32 caliber copper-covered shorts, which he gave to Johnson, who then drove the car to Fort Madison. They went into a barber shop and for the first time defendant heard his companion addressed as Fitterer. After stopping at a tavern for awhile they went to the Lincoln Hotel about noon or a little later, and defendant signed the register for himself as Pat Russell, of 939 West Cullom St., Chicago, the address of one of his sisters, and signed the name Dale Russell for Fitterer. After registering they went to bed and slept until about 8 o'clock that evening. What then took place is set out as follows in Exhibit 4, defendant's statement of September 29, 1952: 'When we got up, we got in his car and drove to Burlington. Johnson drove to West Burlington. However, before we left the Lincoln Hotel and while we were still in there, Johnson told me the real purpose of our trip. Johnson said we could make some easy money through the armed robbery of several groceries in the little towns in Iowa. He named Burlington and Muscatine. The reason for going to West Burlington was that Johnson said he knew about a grocery there. * * * We went to a neighborhood grocery store where there was a grocery and a house attached and found an old man and an old lady. The old man had crutches. Johnson told me he had lived about two blocks from there. We entered the grocery and Johnson walked around one side of the counter and I stayed on the other. Johnson pulled a gun on the old man and the old man laid a roll of bills on the counter, which I picked up, and then Johnson went to the cash register. There was $41 in bills and Johnson got $5 in change out of the cash register. The old man didn't say anything at all so I don't know whether he recognized Johnson or not. I was standing near the old lady who said she was going to call the police and as she stepped around to do so, she stepped right into my arms and I put my arms around her to prevent her from calling. I was not armed. Johnson then ran out the front door and called to me to follow, so I followed. We then drove back to Fort Madison.'

In defendant's question and answer statement of September 26, 1952, Exhibit 3, the hold-up of the grocery in West Burlington is not mentioned. As a witness, defendant's testimony of the above-noted robbery was substantially as stated above in Exhibit 4, except that he said he did not pick up any of the money, as noted therein. The old couple who operated the grocery were Mr. and Mrs. James Jasper Hall. They were witnesses for the State. Mrs. Hall testified that defendant held her and that the other man had a mask on his face. She said the loss was $55 or $60. Mr. Hall testified that Fitterer used to deliver pastry to them, but he had a mask on his face and he did not recognize him. He said: 'While Fitterer was sticking his gun at me his companion was holding my wife. She said, 'I will call the police', and she turned around and started and this guy caught her and held her. * * *. Fitterer came behind me and said, 'This is a stick-up' in a low voice. He was masked and took the money. Russell didn't say anything to me. He did not have on a mask.'

Defendant, as a witness, testified that on their return to Fort Madison after the grocery hold-up they went back to the Lincoln Hotel, and 'the money that was obtained from the robbery was put on the bed along with the money we had in our pockets and split 50-50. I took half the money from that robbery. Then we went to bed. On Saturday, August 9, we got up between 8:00 and 9:00.'

In Exhibit 4 there is also a statement of the equal division of the money taken in the robbery at the gorcery and of the cash in their pockets, and of their equal contribution to all money used for expenses.

When they arose Saturday morning at the Lincoln Hotel in Fort Madison and had breakfast about 9:30, Johnson drove to Wapello to have the water system of his car repaired. When this was done about 3 o'clock in the afternoon they drove to Muscatine and visited with Johnson's former wife for a half hour or more and then drove to Davenport and registered at a cheap hotel about 1 o'clock Sunday morning, August 10th, and slept there until about noon. Defendant registered as Jack Williams and he did not recall under what name Johnson was registered. After dinner they drove to Fort Madison so Johnson could see some persons, and then went to Muscatine and drove around until about 9 P.M. and stopped at a building with a grocery store in front and living quarters in the back. Both of them went in the store and there were some people there, and they bought a package of cigarettes and then went out and sat in the car for about twenty minutes and then returned to the store. What took place is thus described in Exhibit 4: 'At that time, there was only a...