State v. Zoller

• Decision Date: 12 December 1927
• Docket Number: No. 28297.,28297.
• Citation: 1 S.W.2d 139
• Parties: STATE v. ZOLLER.
• Court: Missouri Supreme Court

1 S.W.2d 139

STATE v. ZOLLER.

No. 28297.

Supreme Court of Missouri, Division No. 2.

December 12, 1927.

Motion for Rehearing Denied December 31, 1927.

Appeal from St. Louis Circuit Court; A. B. Frey, Judge.

Charles Zoller was convicted of first degree robbery, and he appeals. Affirmed.

North T. Gentry, Atty Gen. (Carl J. Otto, of Washington, Mo., of counsel), for the State.

HENWOOD, C.

By an information filed in the circuit court of the city of St. Louis, appellant and Thomas O'Toole and Elmer Wilson were jointly charged with robbery in the first degree. Appellant took a severance. The jury found him guilty and assessed his punishment at imprisonment in the Penitentiary for a term of five years. The case is here on his appeal from the judgment and sentence based on the verdict.

The evidence produced by the state shows that, on February 7, 1926, Frank Bressie was conducting two drug stores in the city of St. Louis, one at the corner of Hodiamont and Minerva avenues and the other at the corner of Page and Euclid avenues. At about 11 o'clock that night, he closed the first store mentioned, and, in company with his wife, drove immediately to his other store to check up the business of the day. Upon their arrival at the Page avenue store, they found John Kessler, the clerk, back of the prescription case, in the rear or north end of the store, and appellant, Thomas O'Toole, and Elmer Wilson in the main part of the store, where customers were served. Bressie and his wife were well acquainted with O'Toole, but did not know either appellant or Wilson, by name, at that time. O'Toole was leaning against "the wood frame of the prescription case" and was somewhat intoxicated. Appellant was "sitting astraddle a chair in the middle of the floor, leaning on the back of it," and Wilson was "standing just a little ways" from appellant. O'Toole said "Hello" to Bressie and then said "he wanted to get some booze." When Bressie told him he could not get any booze, O'Toole said "he would get some booze or wreck the place — put the place on the bum," and leaned over the counter and "grabbed at" or "struck at" Bressie. At this point in the drama, appellant walked out through the front door and immediately returned through the side door, flourishing a pistol. He "rushed behind the counter" and commanded everybody to get back and put up their hands. Kessler, the clerk, left through the back door with the change box which contained about $100. Bressie and his wife and O'Toole and Wilson moved back behind the prescription case. Appellant opened the cash register and took out some money, and then took $20 in currency from one of Bressie's pockets. While this was going on, Wilson was "standing next to Bressie" with his hands in his coat pockets. O'Toole was leaning against the counter, apparently drunk, and Mrs. Bressie "was begging him to be careful or he would be sorry and to think of Mildred," his wife. O'Toole then said to appellant, "Put that money back there — put that money back there." Appellant replied to O'Toole, "What is the matter with you? Come on," and appellant walked out through the front door, with O'Toole and Wilson following. Bressie hurriedly procured his revolver and fired four shots at the taxicab in which the three men fled from the scene of action. Bressie called O'Toole's mother-in-law and learned the names of his companions and then reported the robbery to the police department. A checking of the cash register disclosed that $53 was missing. Appellant, O'Toole, and Wilson were discovered getting out of a taxicab in front of O'Toole's home about 5:30 the next morning, at which time they were arrested. When arrested, all three were intoxicated. Appellant had $4.40, O'Toole had $6.30, and Wilson had $22.40. No pistol was found on either of them. Both Bressie and his wife positively identified appellant and Wilson at the police station, shortly after their arrest, and also at the trial. Kessler testified that, while he was in charge of the store about 7:30 in the evening of the robbery, appellant, O'Toole, and Wilson came in the store and he gave O'Toole two quarts of gin; also that they came back to the store after 11 o'clock, about five minutes before Bressie and his wife arrived.

Appellant took the stand and admitted that he was in the drug store with O'Toole and Wilson, but denied that any robbery occurred. He said that, when O'Toole got the two quarts of gin about 8 o'clock in the evening, he waited on the outside, but when they went back for more gin, later that night, he and O'Toole went in the store and Wilson stayed in the taxicab; that, when Bressie and his wife came in, he was sitting down and O'Toole was standing by the show case; that O'Toole said "Hello" to Bressie and told him he wanted some gin; that Bressie replied, "Well, I am not going to give you any gin and if I had been here this afternoon you would not have got what you did get"; that O'Toole said, "Well, we will pay for it;" and Bressie said, "I don't care whether you pay for it or not;" that O'Toole then said to appellant, "You go out, Charley, and get some money from Wilson and we will pay for it;" that, when he returned with Wilson, Bressie and O'Toole were "having an argument" and "started scuffling around"; that he told them "to stop it," and said to Wilson, "You give him enough money so we can get the gin and we will be on our way;" that then he rushed back of the counter to grab Bressie, and said, "Get in the back; don't do that out in front here where everybody can see you." In this connection, appellant further testified:

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