State v. Vigus, 33169.

Decision Date20 December 1933
Docket NumberNo. 33169.,33169.
PartiesSTATE v. VIGUS.
CourtMissouri Supreme Court

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

Daniel Vigus was convicted of robbery in the first degree by means of a dangerous and deadly weapon, and he appeals.

Affirmed.

Roy McKittrick, Atty. Gen., and John W. Hoffman, Jr., Asst. Atty. Gen., for the State.

LEEDY, Judge.

Appellant and one Charles A. Rohlfing were jointly charged by information in the circuit court of St. Louis county with robbery in the first degree by means of a dangerous and deadly weapon. On motion of Rohlfing, a severance was ordered, and thereafter the court appointed counsel to represent and defend appellant. At the May, 1932, term, the case was tried, and appellant convicted, the jury assessing his punishment at a term of ten years in the penitentiary — the minimum under the statute, section 4061, R. S. 1929 (Mo. St. Ann. § 4061, p. 2863). After an unavailing motion for a new trial, he appealed, but has filed no brief.

The facts may be summarized as follows: A holdup and robbery occurred at the Melsheimer pastry shop, located in the 6300 block on Delmar avenue in University City, St. Louis county, at about 10 o'clock p. m., on Saturday, October 31, 1931. Blonda Laura Bange, a widow, fifty-three years of age, was the manager of the shop, but had been so employed only a few days before the robbery. She was alone in the shop, and behind the counter "taking stock" when two strangers entered the front door, one of whom she identified as Vigus, the appellant, and the other as his codefendant. She testified that she looked up from her work, "and Vigus was standing in front of the counter, and Rohlfing came to the back of the counter, and I walked over to him, and I says, `May I serve you?' And he says, `Stickup.'" To which she replied, "My! You are not going to hold me up?" Vigus then took Mrs. Bange into the back room, and, by holding a shiny revolver directly against her chest, compelled her to sit in a chair, meanwhile telling her, "If you holler, I'll shoot you," which she pleaded with him not to do. While Vigus was so engaged, Rohlfing was in the store taking the money out of the cash register, and the latter called back to Vigus, and said that the money was not all in the cash register, and to "make her tell where the money is at." Mrs. Bange then told them it was in the safe. Whereupon Rohlfing cursed, and said, "The money isn't all in the safe. Put her up against the partition, and make her tell where the money is at." She also testified that Vigus then "held the gun at me, put me up against the partition, and Rohlfing says, `Where is the money?' I says, `In that box there.' So Rohlfing took the money and came in the back room, and he says, `You are lying. There is more money here than that.' I says, `That is all the money there is here in this place.'" They then took their departure by way of the back door, Rohlfing admonishing her to "set down on that chair for five minutes, and don't leave this room. If you get up, we will shoot you."

Between $115 and $125 was obtained in the robbery, including the sum of $6 of Mrs. Bange's personal funds, the latter having been taken from her purse, which was in a cupboard underneath the cash register. About $25 in small change was in the cash register, and the balance was in the safe or "box."

Approximately ten minutes was consumed by the robbers in the execution of the holdup, during all of which time they were in the pastry shop. The robbers were not masked, and Mrs. Bange testified she had an opportunity to, and did, observe them. She described Vigus as having on a light grey suit, and a fedora hat, and Rohlfing as wearing a light suit and a cap. About 1 o'clock Sunday morning, which was only three hours after the robbery had occurred, she accompanied police officers to the police station in University City where Vigus and Rohlfing were detained. They had been arrested about 11 o'clock at 5896 Delmar avenue, where they roomed, at the apartment of Mrs. Josephine Weatherby, who, until a few days preceding the robbery, had been employed at the Melsheimer pastry shop in question. When placed in the "shadow-box" at the police station at the time just mentioned, both Vigus and Rohlfing were positively identified by Mrs. Bange as the perpetrators of the robbery. They had been arrested on their descriptions as given to the police. When viewed by her, Mrs. Bange said both were wearing the same apparel they had on at the time she was robbed by them, and that she could otherwise identify them by their general appearance. A few days later, a Smith & Wesson .38 caliber revolver was found in Rohlfing's room at the address mentioned, together with about $11 in quarters, which was wrapped in an old undershirt, and found in a bureau drawer in his room. Some point was made with respect to the discrepancy between the amount of money as alleged in the complaint made by Mrs. Bange on November 2, 1931, before the justice of the peace who issued the state's warrant, and that testified to by her at the trial as having been taken. In the former the amount was stated as the sum of $350; whereas at the trial she fixed it as between $115 and $125. She attributed this to her highly nervous condition for the next few days following the robbery. Appellant took the stand, and his defense was that of an alibi.

I. The motion for a new trial contains eleven assignments of error. Under the statute, section 3735, R. S. 1929 (Mo. St. Ann. § 3735, p. 3275), the first and third assignments preserve nothing for review, because they merely charge, respectively, that the verdict is (a) "against the evidence," and (b) "against the law as declared by the court." Likewise, assignments 4 and 5 are general in character, and charge error in "admitting illegal, irrelevant and prejudicial testimony offered by the state, over the objections and exceptions of defendant"; and "in excluding competent, legal, and relevant testimony offered by defendant, over the objections and exceptions of defendant." Because not conforming to the requirements of the statute, supra, we are precluded from considering them.

II. The complaint that "the court erred in refusing the instruction offered by the defendant at the close of the state's evidence," as alleged in assignment 6, even if good as charging that the court should have given a peremptory instruction to find the defendant not guilty — a question which we do not decide — was waived by reason of his failure to stand on the demurrer when offered. It was so held in State v. Meadows, 330 Mo. 1020, 51 S.W.(2d) 1033, loc. cit. 1036, in an opinion by Commissioner Cooley of...

To continue reading

Request your trial
21 cases
  • Sours v. State
    • United States
    • United States State Supreme Court of Missouri
    • January 15, 1980
    ...... Keeny v. State, 461 S.W.2d 731, 732 (Mo.1971); State v. Pope, 364 S.W.2d 564, 568 (Mo.1963); State v. Vigus, 66 S.W.2d 854, 857 (Mo.1933); State v. Shuls, 329 Mo. 245, 44 S.W.2d 94, 96 (1931). Accord, State v. Braddock, 558 S.W.2d 776, 779 (Mo.App.1977); ......
  • State v. Biswell
    • United States
    • United States State Supreme Court of Missouri
    • April 3, 1944
    ...... Gregory, 127 S.W.2d 408, 344 Mo. 525; State v. Huddleston, 123 S.W.2d 183; State v. Jackson, . 142 S.W.2d 45, 346 Mo. 474; State v. Vigus, 66. S.W.2d 854; State v. Bagby, 93 S.W.2d 241, 338 Mo. 951; State v. Thompson, 92 S.W.2d 892, 338 Mo. 897. (20) The court did not err in ......
  • State v. Hogan
    • United States
    • United States State Supreme Court of Missouri
    • February 7, 1944
    ...... for new trial was insufficient. Sec. 4125, R.S. 1939;. State v. McGee, 83 S.W.2d 98, 336 Mo. 1082;. State v. Vigus, 66 S.W.2d 854; State v. Layton, 58 S.W.2d 454, 332 Mo. 216; State v. Fisher, 46 S.W.2d 555; State v. Williams, 22. S.W.2d 649, 324 Mo. 179; State ......
  • In re Mt. Vernon Bank
    • United States
    • United States State Supreme Court of Missouri
    • December 22, 1933
    ...66 S.W.2d 850 334 Mo. 549 In re Mt. Vernon Bank. Holland Banking Company, an Insolvent State Bank in Course of Liquidation, Appellant, v. Mt. Vernon Bank, an Insolvent State Bank in Course ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT