State v. Velanti

• Decision Date: 08 February 1960
• Docket Number: No. 47646,No. 1,47646,1
• Citation: 331 S.W.2d 542
• Parties: STATE of Missouri, Respondent, v. Johnny VELANTI, alias Raymond Jackson, Appellant
• Court: Missouri Supreme Court

Page 542

331 S.W.2d 542

STATE of Missouri, Respondent, v. Johnny VELANTI, alias Raymond Jackson, Appellant.

No. 47646.

Supreme Court of Missouri, Division No. 1.

Feb. 8, 1960.

William S. Lacy, Kansas City, for appellant.

John M. Dalton, Atty. Gen., James B. Slusher, Asst. Atty. Gen., for respondent.

HOLMAN, Commissioner.

Defendant, Johnny Velanti, was found guilty of the offense of robbery in the first degree and his punishment was fixed by the jury at imprisonment in the penitentiary for a period of 20 years. See Secs. 560.120 and 560.135 (all statutory references are to RSMo 1949, V.A.M.S.). The information charged defendant with two prior felony convictions under the provisions of section 556.280 but the punishment fixed by the jury indicates that it did not find the elements required for the assessment of the punishment under that statute. Defendant has duly appealed but has filed no brief so we will review the assignments properly made in his motion for new trial.

The robbery in this case occurred at the Drake Hotel located at 1016 Locust, Kansas City, Missouri. Sterling M. Ringo was the clerk on duty in the late afternoon of February 9, 1959. He testified that about 5 p. m. a man (this witness and another identified the person committing the robbery as the defendant and for convenience we will hereinafter refer to him in that manner) came up to the desk and said, "Don't move. Put your hands in your pocket, and don't say anything, and nobody will get hurt"; that defendant then had his hand in the right pocket of his coat in such manner as to make it appear that he had a gun in his pocket. The witness stated that about that time someone came to the desk and defendant said, "Go ahead and wait on him"; that after he had gone defendant went behind the counter and took the money out of the money drawer and put it in his left coat pocket. At about that time three other people came in and defendant said to them, "I want to see this gentleman in the back room and he will be right back." Defendant then had the witness go in the back room and told him to stay there five minutes, and defendant then left. After defendant had gone Mr. Ringo went to the switchboard and called the police. The witness testified that the defendant took approximately $182; that there was one twenty-dollar bill, a number of five and ten dollar bills, and a lot of one-dollar bills; that he let him have the money because he thought he had a gun in his pocket and he was 'in fear.' Mr. Ringo stated that the defendant did not have on a mask and was dressed in a light gray suit, a white shirt, and a brown tie with a small figure in it. He positively identified the defendant as the man who took the money.

Mrs. Janet Cress testified that she lived at the Drake Hotel and on the afternoon in question she walked up to the desk and heard the defendant ask Mr. Ringo 'if he would come out, he had a little business he wanted to talk to him about,' and that Mr. Ringo went into the back with the defendant. The witness described the appearance and clothing worn by the defendant in about the same manner as did Mr. Ringo. She positively identified the defendant as the man who took Mr. Ringo into the back room of the hotel on the occasion in question. She testified that she saw the defendant in a 'show-up' at police headquarters on the evening of February 10, and at that time heard him admit that he had robbed the Drake Hotel.

Defendant was arrested in a tavern at 12:03 a. m. on February 10 by police officer Orville Linville. The officer testified that he questioned the defendant because he answered the description of the man who was reported to have robbed the Drake Hotel. When questioned defendant told officer Linville he didn't know how much money he had, but when he opened his wallet he was found to have a large amount of paper money. He was thereupon arrested and taken to the police station. His billfold contained $120, which included one twenty-dollar bill, about two dozen one-dollar bills, and the remainder in five and ten-dollar bills. He also had in his possession a pawn ticket dated February 9.

Police detective Hatfield questioned the defendant on the morning of February 10 shortly after 8 o'clock. He testified that defendant admitted holding up the Drake Hotel and his statement was reduced to writing and signed by the defendant. Portions of that statement (which was admitted in evidence) are as follows: 'About 5 p. m. last night, 2-9-59, it was raining. I was broke and desperate and I went into the Drake Hotel to get out of the rain. I was in the Drake one time previous to this time and I also entered it to get out of the rain. The second time I went in I decided to hold the place up. There was an elderly man behind the counter, I walked up to him with my hand in my pocket as though I had a weapon in my pocket. I told this man to put his hands in his pocket, don't say a word and just stand still. A man came up who wanted to rent a room and I told the clerk to take care of him, which he did. After this man left I went behind the counter and opened a drawer and cleaned out the cash drawer of currency and silver which I put in my left coat pocket. After getting this money I had this desk clerk go into the other office and I told him to stay in there five minutes and no one would get hurt. During this holdup I held my hand in my right coat pocket as though I had a weapon but I did not have a weapon of any kind. After doing this I left the hotel and went to a bar about a block and one-half away from where I called a cab and went to Kansas City, Kansas. I do not know for sure how much money I got in this holdup but it was in the neighborhood of about $200,00.'

Defendant told the witness that one of the places where he had been staying shortly before his arrest was the Bramblee Hotel at 1001 Locust, where he was registered under the name of Jacques DeLoix. The officer searched the room at the hotel assigned to Mr. DeLoix and found therein a toy plastic pistol.

We will briefly mention portions of the defendant's testimony. He stated that he came to Kansas City from Louisiana on February 5; that he was an alcoholic and had been drinking almost continuously from the time he arrived in Kansas City until he was arrested; that on Friday, February 6, he registered in the hotel located at 1001 Locust under the name of Jacques DeLoix. He stated, however, that he had met DeLoix in a bar and they had agreed to room together and did occupy the same room until February 9. (There was no testimony except that of the defendant which would indicate that a person actually existed by the name of Jacques DeLoix.) Defendant further stated that on Saturday he saw a friend by the name of Daniels who was living at the Drake Hotel and visited with Daniels at the Drake; that during the week end Jacques agreed to give him the gray suit which he was wearing at the time of his arrest; that between 4:30 and 5 o'clock on the afternoon of the 9th, defendant went to the Drake Hotel to try to locate Daniels; that he entered the small areaway just beyond the front door, at which time he saw Jacques at the desk talking with Mr. Ringo. The witness then described the actions of Jacques in about the same manner as the State's witnesses had described defendant's actions at the time of the robbery--the inference to be drawn from the testimony, of course, being that Jacques was the person who had committed the robbery. He testified that a short time later he met Jacques in a bar and they went to their room where they both changed clothes and defendant put on the suit which Jacques had apparently been wearing and in which defendant was dressed at the time of his arrest. In order to account for the money in his possession at the time of his arrest defendant stated that shortly after leaving his room in the late afternoon of the 9th he accidentally discovered three one-hundred-dollar bills in the lining of some of his clothing. He stated that alcoholics frequently hide their money and he then remembered having hidden this money before he left Louisiana and came to Kansas City.

In regard to the confession admitted in evidence the defendant stated that the signature appeared to be his but that he would neither deny nor admit signing it because he had no recollection of ever reading or seeing or signing that instrument. The inference from his testimony is that he had been drinking for so many days that, even though he had not had anything to drink for nine hours before the confession was signed, he was still in such a condition from his previous drinking and from 'coming off of it' that he had no recollection of what occurred at that time.

The first assignment in the motion for new trial is that the verdict of guilty and the assessment of the punishment at 20 years' imprisonment was the result of passion, prejudice and 'unfair bias' on the part of the jury. That assignment, in the absence of further specification and demonstration, is too general to preserve any contention of error for review. State v. Hagerman, Mo.Sup., 244 S.W.2d 49; State v. Mayabb, Mo.Sup., 316 S.W.2d 609. The second assignment is that the punishment was excessive and disproportionate to the offense, particularly since there was no proof that defendant used a deadly weapon or violence. The punishment for the instant offense (robbery without use of a deadly weapon) is fixed in section 560.135 at 'imprisonment in the penitentiary for not less than five years.' Since the jury could have...