State v. Shipley

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: State v. Shipley, 232 S.W.2d 515 (Mo. 1950)
• Decision Date: 10 July 1950
• Docket Number: No. 41840,No. 1,41840,1
• Parties: STATE v. SHIPLEY et al

Page 515

232 S.W.2d 515

STATE v. SHIPLEY et al.

No. 41840.

Supreme Court of Missouri, Division No. 1.

July 10, 1950.

Motion for Rehearing or to Transfer to Court en Banc

Overruled Sept. 11, 1950.

J. E. Taylor, Attorney General, John S. Phillips, Assistant Attorney General, for the State.

LOZIER, Commissioner.

Appellants (hereinafter referred to by name or as defendants) were charged with feloniously taking $21 from Marvin Bates by violence to his person and by putting him in fear of immediate personal injury. Sec. 4450, both R.S.Mo.1939, and Mo.R.S.A. The jury found them guilty and assessed the punishment of each at 5 years imprisonment. Their motion for new trial was overruled and they were duly sentenced.

Defendants have filed a transcript of the record, including the bill of exceptions, but no briefs. The cause was submitted upon the brief filed by the attorney general. We have first examined the record as to errors assigned in defendants' motion for new trial. State v. Jones, 360 Mo. ----, 227 S.W.2d 713; and State v. Courtney, 356 Mo. 531, 202 S.W.2d 72.

Bates testified as follows: He was 60 years old and lived on a farm near Polo; on March 26, 1949, he was in Richmond and was looking for a ride home; he met the defendants at the Country Club Tavern around 7:30 or 8 o'clock p. m.; he knew Shipley and Armstrong, but had not met Cook before; Cook offered to take him home in his car; the 4 left the tavern about 9:30 or 10 o'clock; Cook wanted to go by Excelsior Springs and Bates agreed, as he was in no hurry; they stopped at a filling station in Richmond, and Bates paid for the gasoline put in the car; arrived at Excelsior Springs about 10:30 or 11, they went to a cafe and he paid for the food; they then drove to the Dixie Belle Tavern at the 'Y' junction west of town; he did not get out of the car there; the 3 defendants went inside for awhile; after they came out and got in the car, Cook drove the car west (not toward Excelsior Springs, Richmond and Polo) and turned off on a gravel road leading to the Booth mine and stopped the car; Shipley and Armstrong got out and told Bates to get out; when he (Bates) got out of the car Shipley accused him of 'wetting his feet'; he denied this and Shipley hit him, knocking him down; both Shipley and Armstrong hit him several times, would knock him down, pick him up and knock him down again; when they desisted and joined Cook in front of the car, Bates was lying on the ground; he looked up and saw them standing together; the car headlights were still lit and he saw Cook with his (Bates') billfold, opened, in his hand and the 3 looking at it; defendants then got in the car, turned around and drove back toward the highway.

Proof that Bates was assaulted and received a terrific 'beating up' was overwhelming. After the departure of his assailants, Bates went to two different farm homes on the gravel road. The owner of one telephoned the sheriff who came and took Bates to Liberty. The sheriff stated Bates was 'bloody' and that his clothing was torn. Early the next morning, Dr. James W. Willoughby examined Bates at the jail. He testified that Bates was 'covered with blood and mud, both eyes were swollen shut, both lips were about twice their normal size; his nose fractured; his abdomen was tender and showed evidence of being traumatized recently.'

The evidence was that Bates had been drinking that afternoon, that all 4 were drinking beer at the Richmond tavern, that Bates and Shipley drank some whiskey at the Richmond filling station, and that the 3 defendants drank beer at the Dixie Belle Tavern. There was no evidence that any of the defendants were 'drunk.' Defendants' evidence was that Bates was 'pretty drunk but could still talk all right' at the Excelsior Springs cafe and that he did not drink anything after leaving the cafe. According to Cook, from the time they left Richmond there were no arguments; 'the atmosphere was harmonious; everybody was happy, singing, laughing, talking about one thing or another.'

Defendants' evidence as to events up to the time the 4 left the Dixie Belle corroborated Bates. Cook (the only defendant who took the stand), his wife and one other witness testified that Mrs. Cook was with them at the Richmond tavern and that when they left there, Cook drove her home before the 4 went to Excelsior Springs. This Bates denied.

Cook's version was: They went to the Dixie Belle at Bates' suggestion and request; when he, Shipley and Armstrong came out of the Dixie Belle, Bates got out of the car and said he was going back to Excelsior Springs; Cook told him he was 'going to Lexington pretty soon and you might as well ride', but Bates said, 'No, I'll make it all right'; Bates then walked on down the highway toward Excelsior Springs and Cook saw him no more that night; the 3 drove back to Richmond, where Cook stopped and talked to his wife, and then drove to Texas and California looking for work. Defendants' case included character witnesses. Other evidence is hereinafter discussed.

In their motion for new trial defendants first urged that the state had 'failed to prove the corpus delicti of the crime charged and set out in the information.' Defendants' position was stated at the trial thus: 'The state has failed to prove the corpus delicti, in that there is no proof from the prosecuting witness that any robbery was accomplished at that time, or that his money was taken from him by any force or violence, or by putting him in fear of his life or person.'

Bates testified that he had 'in the neighborhood of $20' in a billfold in his hip pocket when he 'went up this gravel road by the coal mine.' He further stated that after Shipley and Armstrong quit beating him up, he saw, in the light of the headlights of the car, the 3 together look at his billfold which Cook was holding open; and that they drove off without returning it or any money to him. Bates could not swear just when the billfold containing the money was taken from his pocket. But he stated positively that he had it when he left Excelsior Springs; that he did not thereafter get out of the car until it stopped on the gravel road and he was ordered out; that it was not taken from his person prior to that time; that the money was...