State v. Schlie

• Decision Date: 25 March 1943
• Docket Number: 37935
• Parties: State v. Raymond Schlie, Appellant
• Court: Missouri Supreme Court

169 S.W.2d 348

350 Mo. 924

State v. Raymond Schlie, Appellant

No. 37935

Supreme Court of Missouri

March 25, 1943

Appeal from Circuit Court of City of St. Louis; Hon. Joseph J Ward, Judge.

Reversed and remanded.

Roy McKittrick, Attorney General, and Gaylord Wilkins, Assistant Attorney General, for respondent.

(1) There was substantial evidence introduced by the State to support the findings of the jury. State v. Cook, 3 S.W.2d 365; State v. Lippman, 222 S.W. 436; State v. Andrews, 249 S.W. 60; 297 Mo. 228. (2) The court did not commit error in overruling defendant's demurrer at the close of the State's case. State v Barr, 78 S.W.2d 104, 336 Mo. 300; State v Lebo, 98 S.W.2d 695, 339 Mo. 960. (3) The court did not err in overruling appellant's demurrer to all of the evidence at the close of the case. State v. Ring, 141 S.W.2d 57, 346 Mo. 290; State v. Peters, 123 S.W.2d 34; State v. Jackson, 222 S.W. 746, 283 Mo. 18; State v. Mitchell, 252 S.W. 383. (4) There was no improper conduct on the part of the jurors as alleged in the assignment of error in appellant's motion for new trial designated No. 26. State v. McGee, 83 S.W.2d 98, 336 Mo. 1082; State v. Arnett, 92 S.W.2d 897, 338 Mo. 907.

OPINION

Leedy, P. J.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis whereby defendant was convicted of robbery in the first degree, and sentenced to imprisonment in the penitentiary for a term of five years.

We have not been favored with a brief on the part of defendant. However, upon an examination of the record in the light of his motion for a new trial, which sets up numerous assignments of error, we have concluded the case must be remanded for another trial, unless, as defendant further charges, the state wholly failed to make a case for the jury. The latter will be first examined.

In substance, the state's evidence was to the following effect: That on June 8, 1938, Miss Mary Marquard was clerking in her brother's dry goods store at 2807 North Sarah Street in the City of St. Louis; at about 11:00 o'clock that morning two men entered the store, and asked Miss Marquard to see a certain garment (a polo shirt); after examining the same, they left the store, saying they "might be back." They returned about 4:00 P. M., and Miss Marquard again waited on them; a garment was selected, and Miss Marquard, followed by the two customers, took it over near the cash register to be wrapped. She was handed a dollar bill, and when she started to open the cash register, she noticed "a movement of the defendant in front of the counter" and that "he carried a paper bag with something in it." As she opened the cash register, defendant said, "Leave it open." He had a revolver in his hand. Upon seeing the muzzle of the revolver, Miss Marquard complied. Whereupon defendant "put his hand in and took all the dollar bills out of the dollar bin and ran out." The amount taken was $ 16.00. She was positive in her identification of defendant. Defendant was not apprehended until December 28, 1940, on which date he confessed, both orally and in a written statement to the police, wherein he said he and his brother (his co-defendant) perpetrated the robbery. The defense was an alibi, which, it may be observed, was not supported by any testimony except his own. He further contended his confession was not voluntary, but was obtained under duress. In the light of the foregoing it must be held the challenge of the sufficiency of the evidence is wholly without merit.

Defendant complains of an alleged unlawful separation of the jury. If there was such separation, it occurred on the evening of April 8, at an adjournment of the court during the trial, and not after the jury had retired to deliberate on a verdict; for the record shows the trial before the jury commenced on the morning of April 8, and it proceeded until the hour of adjournment, when "further proceedings herein" were "deferred until tomorrow morning." The next morning the trial was resumed, says the record, "and the testimony of the witnesses is further heard and concluded," and said case submitted. At the hearing on the motion for new trial, defendant offered testimony in support of his allegation charging unlawful separation of the jury. To rebut such showing as was made by the movant on this issue, the state called a single witness, a deputy sheriff, one of those in charge of the jury, whose testimony, we think, makes necessary the disposition above indicated. On direct examination, after identifying himself as stated above, he was asked this single question: "Q. During that night [of April 8] did you at any time allow any of those jurors to be away from the custody of yourself or the other deputy sheriff, to your knowledge? A. No, sir." On cross-examination it was developed that, upon adjournment for the day, the witness and five of the jurors left the other seven (who remained with another deputy), and went about gathering up automobiles belonging to the five jurors mentioned. Apparently the cars had been parked in the downtown area on the morning the trial commenced. The witness described the process in this way: "Some has got cars; one [deputy] goes with them, and the other deputy stays with the rest of them. . . . We would get in the closest car and pick up the others, and they would follow us back of the city hall and park them back there. Q. So that each man drove his own automobile? A. Each man drove his own automobile." The witness further testified that one of the five was manager of a large downtown hotel, and wanted his radio; that they went to his hotel, and all of them went upstairs and waited in the hall outside the manager's quarters while "he [the manager] went in and said something to his wife and got his radio and come out with the radio"; that he did not "speak to any bellhops or anyone else", except his wife, who "was the only one he was in contact with while I was with him." He said the job of collecting all the cars took forty-five minutes. He further testified, as follows:

"Q. Did you make any other stops? A. We...