State v. Tharp
| Decision Date | 28 October 1933 |
| Citation | 64 S.W.2d 249,334 Mo. 46 |
| Parties | The State v. Myron Tharp, Appellant |
| Court | Missouri Supreme Court |
Appeal from Sullivan Circuit Court; Hon. Paul Van Osdel Judge.
Affirmed.
Roy McKittrick, Attorney-General, and James L. HornBostel Assistant Attorney-General, for respondent.
The defendant appeals from a judgment and sentence for robbery with force and arms under Section 4058, Revised Statutes 1929. He was convicted by a jury and his punishment assessed at imprisonment in the State penitentiary for five years. He is twenty-one years old. The specific charge was that he and two other young men of about the same age with a revolver held up and robbed L. V. Smith, a relief station agent of the Quincy, Omaha & Kansas City Railway Company, at the village of Humphreys in Sullivan County, on the night of September 18, 1931, taking from him $ 43. The three defendants were jointly charged by information. A severance was taken and the instant defendant tried separately. All three defendants testified in this case. Their defense was that while they went through the form of committing a robbery it did not in law amount to that because the affair had been prearranged with and chiefly by Smith in order to get and divide between the four of them a considerable amount of railroad and express money which Smith customarily carried on his person. The defendant has filed no brief. The motion for new trial complains: that there was no substantial evidence to support the verdict; of the instructions given for the State; and of the admission of statements and a confession of the defendant, which it is contended were improperly obtained.
The prosecuting witness, Smith, had been sent by his company to Humphreys on about September 15 to relieve the regular station agent for a few days. He picked up an acquaintance with the defendant Tharp the next day and that night made a trip with him to Trenton, in Grundy County, where there was a street fair or carnival. Two days later on September 18, he says, the defendant proposed that they again go over to Trenton that night. They did, returning to Humphreys about 12:30 a. m. The trip was made in the defendant's car. The latter requested Smith to do the driving part of the way back. When they got within a mile or so of Humphreys the defendant said he was getting cold and took the wheel. He drove around "the square" once, down by the canning factory and back up to the square where he parked for a few minutes. The two sat in the automobile and talked during that time. The defendant turned off the headlights and then "he reached in and turned the cab light, flashed it on for a second and turned it off again for about five minutes."
The street was dark and up to that time no one was in sight anywhere. Then two men came up suddenly. One flashed a flashlight as he ran toward the car and took a position near the left rear door. The other stood at the front window on the left, or driver's, side and pointed a gun at the defendant and Smith. The window on that side was open. The two robbers wore overalls and had red handkerchiefs tied around their faces and caps pulled low over their eyes. They made the defendant and Smith get out with their hands up. They searched Smith first and took his pocketbook containing $ 43.50 in currency and silver money, and some railroad passes. Then they searched the defendant and took about $ 1.45 from him. All this took not over three minutes. The robbers then told them to get in the car and drive off without looking backward. The defendant drove Smith about half a block to the place where he was rooming, let him out, and proceeded on. Smith did not recognize either of the robbers at the time.
The next morning Smith notified the railroad company by wire of the robbery. That afternoon the company sent two special agents named Amis and Cummings to investigate. Smith told them he suspected the defendant of complicity in the robbery though ostensibly he had been one of the victims thereof. The two special agents, learning that the defendant was at Trenton again that evening, drove over there with Smith. After wandering through the crowd on the streets at the carnival they finally encountered the defendant, Tharp, and another man. The special agents took both into custody and conducted them to the police station where they interrogated them separately. The young man picked up with the defendant proved to be Alexander. After the two had been questioned for an hour or more they admitted the robbery and implicated the third young man, McClaskey, or at least the examination by the officers developed enough facts to make them request the sheriff of Sullivan County to come over to Trenton and take the three men into custody.
That same night the party proceeded to Milan, the county seat of Sullivan County, by automobile and the three defendants were put in jail. On the evening of the following day, about 7:30, all three were taken to the office of the prosecuting attorney. There the three defendants made separate written confessions. Those present in the prosecuting attorney's office at the time were the prosecuting attorney, Mr. A. B. Walker; the prosecuting witness, Smith; Messrs. Amis and Cummings, the railroad special agents; Mr. L. C. Hoover, sheriff of Sullivan County; Mr. A. L. Berry, deputy sheriff. All of these testified the defendant's confession was made freely and voluntarily; that he was not coerced or promised any special indulgence or immunity. On the contrary the State's evidence is that the three boys all were told they might have the advice of counsel if they desired, and that their confessions would be used against them. Two or three of these witnesses for the State said the father of at least one of the boys was present a part of the time during the examination. The confession signed by the defendant, Tharp, was as follows:
When the confession was first offered in evidence the defendant objected on the ground that it had been obtained by coercion and promises of immunity. The court excluded the jury and heard the testimony of the persons present that night, as above named, and they stated the circumstances under which the confession was made, as we have recited them above. The defendant Tharp then took the stand and said after questioning him repeatedly for an hour and a half, Amis promised to turn him, Tharp, loose if he would confess and that he wouldn't have to go to jail. On this preliminary showing, pro and con, the court permitted the confession to be introduced before the jury.
Thereupon all the State's witnesses above named gave their testimony again in the presence of the jury. In the cross-examination of Special Agent Amis during the preliminary hearing on the confession in the absence of the jury, he had been asked if Prosecuting Attorney Walker in his office at Milan told the boys "it would be better for them if they would come on and tell it." Mr. Amis answered in the negative. He was then asked if he, himself, had told the boys that and he answered "I might have told them at Trenton, but I didn't here." When Mr. Amis was examined again on this same matter in the presence of the jury he was reminded of the answer previously given by him and he said what he meant was "I might have told them at Trenton to tell the truth;" that he might have answered as the stenographer's notes showed, but the correct answer was as he was then giving it, that he might have told them to tell the truth. The other special agent, Cummins, said he also told the boys the best thing to do was to tell the truth, or to "come clean and tell the truth," or "to tell it just exactly as it was."
After the confession was admitted in evidence the defendant Tharp...
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