Suhay v. United States, 1589.

• Citation: 95 F.2d 890
• Decision Date: 25 April 1938
• Docket Number: No. 1589.,1589.
• Parties: SUHAY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

95 F.2d 890 (1938)

SUHAY et al. v. UNITED STATES.

No. 1589.

Circuit Court of Appeals, Tenth Circuit.

April 5, 1938.

Rehearing Denied April 25, 1938.

Wm. H. McHale, of Kansas City, Kan., and John Kramer, of Kansas City, Mo. (Verne D. Edwards, of Kansas City, Mo., and Harold D. Thomas, of Washington, D. C., on the brief), for appellants.

Summerfield S. Alexander, U. S. Atty., of Topeka, Kan. (R. T. McCluggage, Homer Davis, and Gordon Sloan, Asst. U. S. Attys., all of Topeka, Kan., on the brief), for appellee.

Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.

BRATTON, Circuit Judge.

Appellants Robert J. Suhay and Glen J. Applegate were charged by indictment with the murder of Wimberly Wayne Baker in the post office building at Topeka, Kan. In submitting the case to the jury, the court instructed on murder in the first degree and murder in the second degree; and the jury was appropriately advised that in the event appellants were found guilty of murder in the first degree, the verdict could be qualified by adding thereto the words "without capital punishment." Separate verdicts were returned finding them guilty of murder in that degree, but the qualification was not added and sentences of death followed.

In April, 1932, appellant Suhay was sentenced in New York to a term of imprisonment of from six to twelve years for attempted robbery in the second degree, and he was paroled in March, 1936. In December, 1930, appellant Applegate was sentenced in the same state to a term of from five to ten years for robbery in the second degree, and he was paroled in November, 1936. The paroles were forfeited on April 9 and June 12, 1937, respectively. Appellants became acquainted in prison and they associated together in New York City after being paroled. On the morning of March 12, 1937, appellant Applegate intrigued a salesman of Buick automobiles to drive him to 64 Riverside drive on the pretext that he was in the market to purchase an automobile and desired a demonstration. When they reached the address, appellant Applegate induced the salesman to accompany him to his room on the third floor. Appellant Suhay was in the room. Appellants immediately drew guns on the salesman, told him it was a stickup, tied his wrists and elbows behind him, gagged and bound him around the face and neck, removed his shoes and bound his ankles to the base of the chair, and told him they wanted his automobile. They took his driver's license, his Legion card, and the keys to the automobile and left. The automobile was gone when the salesman freed himself and went downstairs. About three hours later, appellants and a third person held up and robbed a bank in Katonah, N. Y., of more than $18,000. On the same day — apparently soon after the robbery — appellant Suhay and a companion driving a Buick automobile stopped Alexander Ziring on the highway at a point about a mile from Katonah. With a gun in his hand, appellant Suhay told Ziring and his companions to get out and be quick about it; they did so, Ziring having his hands up; and appellant Suhay and his companion fled in the Ziring car. Appellants then traveled together in several states. Appellant Applegate purchased two pistols in Dayton, Ohio, one on March 24th, and the other on April 2d, using a fictitous name in each instance. They purchased two identical Buick automobiles in Cleveland on April 5th, each using a fictitious name. They arrived at Kansas City, Mo., in the automobiles thus purchased, on the afternoon of April 15th. They registered at a hotel under fictitious names and their automobiles were placed in a garage.

A complaint was filed with the United States Commissioner for the Southern District of New York, charging appellants with the robbery of the bank at Katonah and a warrant was issued. Baker, Martin, and Farland, special agents of the Bureau of Investigation, were advised that the warrant had been issued, that it was believed one of the accused would call for mail at the post office in Topeka, and that the other probably would be with him; and the officers were stationed there with directions to apprehend them if they appeared. Appellants went from Kansas City to Topeka on the morning of April 16th in one of the Buick automobiles, leaving the other in the garage. They walked into the lobby of the post office together and while appellant Applegate lingered, appellant Suhay went to the general delivery window and called for mail under the name of Rudolph Brinker. The clerk handed him two letters, one of which contained a newspaper clipping, stating that the two were wanted for robbery of the bank at Katonah. He left the window and walked to a nearby table in the lobby. About five minutes later, appellant Applegate went to the window and called for mail under the name of Louis Moore. The clerk laid one letter on the shelf of the window and told him that the other was a special delivery for which he would have to sign. The clerk thereupon flashed a prearranged electric signal. Baker immediately left his position, walked to appellant Applegate with his pistol in his right hand, placed his left hand on appellant Applegate's shoulder, and said, "Put them up, Moore, higher, higher," or "Stick them up, you are under arrest," or words of similar import, the testimony differing as to the exact words used. Appellant Applegate turned slowly toward Baker with his hands about shoulder-high and with his right hand in position to strike. Baker quickly placed his left hand on appellant Applegate's chest and under his left arm as if searching for a gun. Appellant Suhay thereupon walked up behind Baker and said, "What is this all about," or "You can't get away with this." Baker turned his head and appellant Suhay shot at him. When Baker turned his head, appellant Applegate drew his gun and also shot at Baker. Baker fell wounded, and died the next day; and his pistol subsequently showed that one shot had been fired from it. Appellants retreated out of the lobby, but continued to shoot at the prostrate form as they ran. Martin was stationed at a different place in the lobby, and he did not see the electric signal. He fired at appellants as they ran, and followed them out of the building. They emptied their pistols as they retreated in the lobby and ran across the street to their parked automobile. Appellant Applegate slipped a clip of cartridges into his gun while they were crossing the street, and they fired two shots at Martin after they entered the automobile, one being fired through the rear window. Appellant Suhay was wounded in the left wrist and his wrist watch was shot away. They fled northward. Their automobile was overturned and wrecked near Sabetha, Kan. Appellant Applegate drew his gun on a passing farmer and compelled him to take them to his home and to summon by telephone his family physician at Sabetha. The physician arrived within a few minutes; appellant Applegate told him that they had been in a shooting affray; that one of them had been wounded; and that they desired the physician to dress the wound. The physician and appellant Applegate went to Sabetha for tetanus antitoxin. Appellant Applegate sat facing the physician throughout the trip with his gun in his pocket. After they returned, the physician treated the wound; they paid the farmer for the food his wife had prepared and served them; and appellant Applegate gave him a conveyance for the wrecked automobile. The physician stated that his charge was $10; they gave him $20; and they told him that there was about $7,000 in the hotel at Kansas City, and that he could have it if he would go there and get it. They then took his automobile and continued their flight. They were placed under arrest that night at Plattsmouth, Neb. Appellant Applegate had more than $2,800 in currency on his person, and appellant Suhay had slightly less than $2,000 on his person; and about $7,000 in currency was found in their baggage at the hotel in Kansas City. Some of the money found on appellant Applegate's person and some of that found in the baggage had been shipped by the Federal Reserve Bank in New York to the bank at Katonah shortly before the robbery. One of the pistols purchased in Dayton was taken from the person of appellant Suhay at the time of the arrest, and the other was found on the seat of the automobile beside appellant Applegate. Appellants made separate verbal and written statements after their arrest. They denied that they participated in the robbery of the bank at Katonah; but admitted that they had violated their paroles; that Baker stepped up to appellant Applegate with his pistol in his right hand, placed his left hand on appellant Applegate's shoulder and said, "Put up your hands, Moore, put them up higher, higher"; that appellant Applegate turned and Baker felt under his breast and under his left arm as though searching for a gun; that appellant Suhay then walked up behind Baker and said, "What's this about," or words to that effect; that Baker then turned his head toward appellant Suhay; that the shooting followed; that they believed Baker fired the first shot; that each shot at Baker; and that they emptied their guns in the lobby and as they fled out of the building and across the street. Appellant Suhay stated to a special agent that he intended to use the pistol purchased in Dayton on any one that accosted him for the purpose of taking him into custody for return to New York to complete his sentence there; that he thought Baker was a plain-clothes officer at Topeka attempting to arrest Applegate for the violation of his parole; that he further thought if appellant Applegate was arrested he would be also; and that he approached Baker from behind with his gun for the purpose of preventing Baker from taking appellant Applegate into custody. Appellant Applegate stated to a special agent that he thought Baker was a local officer at Topeka attempting to make a chance pickup; and that he further thought they...