The State v. Levy
| Decision Date | 12 February 1895 |
| Citation | 29 S.W. 703,126 Mo. 554 |
| Parties | The State v. Levy et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Clinton Circuit Court. -- Hon. Wm. S. Herndon, Judge.
The defendants were indicted, tried and convicted at the May term, 1894, of the Clinton circuit court of the crime of robbery in the first degree, and sentenced to imprisonment in the penitentiary for the term of twenty-five years each.
This robbery is alleged to have occurred on the the twenty-sixth day of June, 1891. Four counts in the indictment charge the crime of robbery, while the fifth and sixth counts charge that Trice was swindled by means of a confidence game known as three-card monte. Before going to trial, defendants applied for a continuance, but this was denied them. Being sentenced in accordance with the verdict, they appealed to this court.
The evidence in the cause is substantially this: During the month of June, 1891, the prosecuting witness, Stephen H. Trice, was a farmer in excellent financial circumstances, residing between Plattsburg and Lathrop, in Clinton county, Missouri. On the twenty-fifth day of June, 1891, he was engaged, with the help of some hands, hoeing corn near his residence on the farm, when a carriage being drawn by two black horses, drove up the road; two nicely dressed and apparently polished gentlemen were the occupants; one came across the field to where Mr. Trice was at work, and introduced himself as Dr Sparks, of St. Louis. After the introduction to Trice, they walked out to the carriage, which was then standing in front of the gate, about one hundred and fifty yards away, where Dr. Sparks introduced Mr. Trice to the other party, who he said was Judge Hays, of St. Louis.
Dr Sparks, so called, is identified as defendant Haight, Judge Hays as Tom Jackson. Jackson was convicted in the Clark circuit court and served a portion of his term in the penitentiary, while Haight and Levy, on pleas of guilty in the Clark circuit court, served a portion of their sentence in the penitentiary, their crimes having been the obtaining of money under false pretenses.
Jackson and Haight represented to old man Trice that they were there for the purpose of investing a large amount of money in real estate; that Jackson was the brother of a lady then at the hotel in Plattsburg, whose husband had died, leaving a large amount of money which, under the terms of the will, was to be invested in real estate for the use and benefit of the widow and minor children. After discussing the value of Trice's farm and the probabilities of his (Trice) being able to purchase some adjoining land for them, they announced that they would return to Plattsburg, and return in the morning and bring with them the sister.
On the following morning about 9 o'clock they returned in the same conveyance and proceeded to look over the land. Trice informed them that he would sell under no circumstances without first conferring with his father-in-law, Joseph Biggerstaff, who resided at Plattsburg. This seemed to be satisfactory, and they arranged to return to town, and took old man Trice with them, with instructions to him to secure $ 3,500 in currency, that he might be able to buy the additional and adjoining land. They explained that the sister was not with them that morning, for the reason that she was sick at the hotel. About half way between the Trice farm and Plattsburg Jackson got out of the buggy, saying it was unnecessary for him to go back down town; that he would get out there and take a bath and await their return.
Haight proceeded with Trice in the carriage to Plattsburg cautioning him not to say a word to anybody about the transaction, for, if they didn't purchase his land, they wanted to purchase a tract southeast of Cameron, and didn't want anybody to know anything about it. When they got into Plattsburg, Haight suggested that they had better not be seen together, and for Trice to get out and walk down to Biggerstaff's, which he did, and to be in a hurry, for they wanted to return to St. Louis that evening.
Trice went to see Mr. Biggerstaff, then to the bank, where he drew $ 3,500 in greenbacks -- seven packages of $ 500 each -- which the banker, Trimble, delivered to him in a package wrapped in paper and tied with a string. Trice proceeded down the street from the bank to where he met Haight, got into the carriage and proceeded on the return trip. On the way back Haight gave Trice $ 1,000 in greenbacks, as he said, to show him they were in earnest, which Trice put in the package with the $ 3,500. When they got to a point near where they had left Jackson the carriage was stopped, and Jackson came up and said: "Doc, I have found a nat; he wants a game; I told him I was not a gaming man, * * * but I told him may be you would."
Haight was sitting on the front seat of the carriage and Trice on the rear seat. Jackson climbed into the seat with Trice placed his left hand in the lap of Trice and his right around his shoulder. Levy, the other defendant, at the same time made his appearance, while along the side of the road two other men with masks or dummies were standing. Levy and Haight proceeded to throw three-card monte, and Levy won some money from Haight.
Trice was sitting there with the $ 4,500 in green-backs in his hands, when Haight reached into his pocket, pulled out a bunch of money and threw it down, and Levy went into a carpet-sack he was carrying, took out a bunch and threw it down; Levy won again; in the meantime Trice had become alarmed and insisted that they drive on or let him out, which they refused to do. Levy then asked Trice where his money was and Trice answered: "I have no money to indulge in that way; I know nothing on earth about gambling," but they said, "You can learn." Trice said he was pretty old to learn, he knew nothing about cards; did not know one from another and had never made a bet in his life on anything.
Levy threw the cards and said: "Turn that card," and Trice said: when Jackson struck Trice and said: "Trice, you will have to turn that card." Levy said: "Trice, you will have to turn that card." Levy ran his hand into his pocket, drew his revolver, and said: "Turn that card, turn it damned quick, or I will turn you." Trice then turned the card and Levy reached over and took his money.
There was no money put up, and Trice had possession of the money until after he was compelled by Levy, under cover of the revolver, to turn the card; they drove on a little farther, where they put Trice out of the buggy, ordered him to go home, and warned him not to leave there that night, not to say anything about it, and led Trice to believe, as he swears, that he would be killed if he did. They then drove to Cameron as hard as they could go, delivered the team to a liveryman, and made their escape, and were not apprehended nor arrested on this charge until they were discharged from the penitentiary under the other indictment.
Many witnesses from Plattsburg, along the road from Plattsburg to Trice's home, from Trice's home to Cameron and at Cameron, identified the defendants. The liveryman at Cameron testified that when Haight drove the team into the stable the horses were very hot indeed, having evidently been driven hard, and that Haight gave him a quarter to pay the boy for giving them special attention.
(1) The court should have issued the special commission to take the depositions of those witnesses whose depositions had just been suppressed, and named such terms and conditions as were suggested by attorneys for appellants. While the issuing of such commissions lies within the discretion of the court yet, the supreme court will reverse the judgment where such discretion is abused. (2) The misconduct of the prosecuting attorney in pointing his pencil at the prisoner, George Haight, when he saw a state's witness was about to identify another man for him, and his remarks in his closing speech by contemptuously calling him a Jew, shows too much zeal and is wholly wrong. (3) This court having solemnly and unanimously determined that the facts as testified to by Stephen Trice at Kahoka, in the case of ""State v. Jackson, 112 Mo. 585, constituted a violation of section 3826, Revised Statutes, 1889, and not robbery -- that question is ""res adjudicata in this case, unless Stephen Trice testified to additional and different facts which are of a nature to cause the court to render a different decision, which is not the case. (4) The verdict is against the...
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