Lay and Jones v. State

PRENDERGAST, Judge. The grand jury of El Paso County indicted appellants and one Racobs jointly charging that on February 21, 1917, in said county they robbed C. Stull by using and exhibiting a firearm (pistol). Racobs was not arrested or tried. Appellants were tried together. They were each found guilty by a separate verdict and the punishment of each was assessed at five years confinement, the lowest punishment prescribed by law. All the bills of exceptions herein were filed too late to be considered. The Assistant Attorney General’s motion to strike them out and not consider them on that account must be sustained. The only question raised which can be considered is the sufficiency of the testimony to justify the verdict. Shortly after midnight of the night of February 20th, about 1 a. m., A. L. Gentry as motorman and C. Stull as conductor were running into El Paso from the end of the line where they ran, a street car. When they approached one of the railroads to cross it they' stopped the car and Conductor Stulj. got off the car and walked ahead to the railroad crossing for the purpose of flagging. Mr. Gentry testified that as Mr. Stull got’off the car for said purpose two men in disguise came( up and covered him with a pistol and told him to throw up his hands, which he did. The one with the pistol told the other man to go through him, which he did. Mr. Stull swore that they got a black folding purse off of him with three $10 bills and six $1 bills, all paper money of the United States. After they thus robbed Stull, for the purpose of robbing the ear too, they ordered him to get on the car, which he did, on the front end, the man with the pistol following on .the car and as he got on he turned his head slightly and thereupon Mr. Gentry grabbed the pistol and they had quite a tussle for it. In the tussle the pistol fired and Mr. Gentry’s little finger was shot. During the whole struggle for the pistol the party who had it kept hollering, “Soak him”; that the man finally succeeded in wrenching the pistol from Mr. Gentry and ran up -the railroad. These men were unknown to Gentry and Stull. Gentry described the one who had the pistol, stating that he had on an army sweater and civilian trousers. *204 The other had a checkered rag over his face, both being thus masked. Gentry did not notice the attire of the one who did not 'have the gun sufficiently to describe it. Gentry further described the man with the gun as weighing 180 or 18-5 pounds and about six feet tall. The testimony of Stull and Gentry was about the same. Stull said that he could not tell which one of the men kept saying “Soak him,” while the man who had the gun was struggling with Gentry. Both these witnesses swore that the man who had the gun had on a cap. Appellants were soldiers located at Fort Bliss, at El Paso. James P. Harden, another soldier there, testified that at the time of said robbery and before he slept in the same tent with the appellants and others; that he had gone to bed about 10:20 that night; that appellants came in the tent about fifteen minutes later; that they built a fire in the stove and turned on the electric light for a minute' or two and sat down on their bunks; that while they talked in a low tone, he was awake and heard their conversation. He swore: “Lay said he would not go to hold up the car unless Racobs went. Racobs was a private in ‘F’ Company. Racobs had a nick-name—‘Breezy’. Lay said he would not go,—he called him ‘Breezy’ and said that he would not go unless ‘Breezy’ went. Jones said he would be up in a few minutes, and in a minute or two Racobs came in and asked if they had any guns. They told him ‘no,’ that they could not get one, and he said he thought he Could get one from the boys—he didn’t call any names—he just said ‘the boys.’ He was gone for a little bit—for about five minutes, and then he came back and said he had gotten them all right. They had discussed getting a pistol from Private Smith, of the provost guard, and they said ‘no’; that they had asked him for it a day or two before and he would not let them have it. Jones said that Smith said ‘the damn son-of-a-bitch would give it away if he did or else kill someone with it.’ “After this discussion about the pistol and after Racobs had come back, they talked over their plans. Jones’ plan was to get on the street car and throw their pistols in the men’s faces and one of them to go through their pockets. They said they would get on the street car over at the railroad track. At the street car’s first railroad crossing. And Racobs spoke up and said: T believe Lay’s plan is the best—to get the conductor when he gets off to flag the ear. Two of us will get him and the other one will go behind the car and see if anyone is coming.’ That is the plan they seemed to adopt. They said something about going to the rear and then they all went out. . . . They left there then. These -boys first came in about 10:45. It was near 12 o’clock when they left the tent. There had been no interruption, except Racobs coming, during that period of conversation. They left the tent about 12 o’clock. I saw them next some time between 1 and 2; it was nearer to 2 o’clock than it was to 1. It was about an hour and a half later. Jones and Lay came back in the tent. Racobs came back in after them. After they came back into the tent, Jones and Lay came into the tent. One of them—I don’t know which one—reached *205 up and turned on the light. Someone came walking down the company street and one of them said 'sh’ and snapped off the light. Jones said: 'Go out and see who it is/ In our tent we have two lights. We have a drop cord that runs from the center of the tent and Lay kept it hanging over his bunk and after Jones went out he turned that one on—it hangs in the corner of the tent, over his bunk. Then he went over to the stove and took the lid off the stove and then he pulled out a black pocketbook and took out a handful of bills. Then he looked through the pocketbook. ... I could see the pocketbook all the while from the light that was over in the corner and the light from the bed of coals, and he dropped the pocketbook down in the coals. Then he went over to his light and went through the money. Then he cut off the light and came back to the stove. In just about a minute, Jones came back in the tent and Racobs came with him and said: 'How much did we get?’ Lay said: 'About $36/ Then they started to count the money and they said: 'It- will be easy to divide these three ten dollar bills/ and each one took a ten dollar bill apiece. Racobs said he put the guns back and the boys didn’t know they got them, but he said: 'We better give these boys a' dollar apiece to keep their mouths shut; you fellows give me a dollar apiece/ They sat down and Racobs said: T)id you see me knock that fellow out of the car ?’ and he says: 'He would have given me a tough fight if I hadn’t shot when I did and it ain’t my fault that I didn’t kill him/ ''As to any further discussion as to what went on there.. Racobs. said: 'You kept hollering ''Hit him in the head.” Why didn’t you come to my rescue; didn’t you see I had my hands full ?’ After they came back and divided their money, they sat around there for about five minutes. They didn’t have much more to say. They talked pretty low and that is all I could catch. . . . Jones and Lay went to bed, and Racobs went out; he belonged in another company—Company He further swore: ''As to the kind of hats they wore that night, Lay was bareheaded when he came back'. He had on a small .citizen’s hat when he went out; he had on a small black hat. I could not swear positively whether I would know it if I saw. it again. That is the hat (indicating hat handed to witness by counsel for defendant). It belongs to Knight. That looks just like the hat. As to how I know it was Knight’s, Knight bought it here in town from Berg. Let me see it. (Looks inside .hatband.) This is the hat; it was bought from Sol. I. Berg. Lay was wearing that when he went out and he came back bareheaded.” Among other things, Harden, ofi cross-examination, swore: “Ah to my understanding before that, that there was a plan to rob someone, Lay came to me, asked me if I wanted to go in on a ‘keen’ deal. He didn’t say what kind of deal it was. Someone walked around where we were and no more was said then. The next day I was hanging out some laundry and Jones came along on the way to the rear—to the toilet; he was going in that direction—and he stopped and asked me if I wanted to go in on a ‘keen’ deal with them, and I asked hfm what it was, and he said it was what Lay had been talking to me *206 about, and I told bim that Lay never told me what the deal was, and then he told me it was to hold up a street car. I told him I would not go in on anything like that with him”; and also: “Lay had on this hat. Jones had on a cap. Jones had on a sweater. I could not tell the color of the cap because when they were sitting on the bunk they had the light cut off. I know how Lay was dressed. He had on a brown striped suit. I got a view of that when he was taking out the-pocketbook. He had on a brown suit of clothes with small stripes in it. Jones had on a brown sweater and a cap. He had on civilian breeches. A brown looking sweater. As to where that sweater is now, I don’t know anything about that sweater. He came back and went to bed. As to having seen that sweater since, he has a sweater—an army sweater—and it could have been it.” And he further swore: “The conversation that I detailed that occurred between Jones, Lay and Eacobs, as related by them at the street car; all that I heard them state—Eacobs asked Jones why didn’t he come to his rescue, or words to that effect. He said: ‘You kept hollering, “Knock him in the head,” and “Soak him in the head.” Why didn’t you come and help me. I shot that son-of-a-bitch and it ain’t my‘fault that I didn’t kill him.’ I can’t remember word for word every word that they used, but those are the effects.” - Joseph E. Mann was another one of the soldiers who slept in the same tent with appellants, Harden and some of the others. He was asleep a 'good deal but he corroborated Harden in that he swore that Lay came in the tent that night after midnight, had a pocketbook described by Harden, took some bills out of it, then pitched the pocketbook in the stove and burned it up; that he went back to sleep and did not know anything else about the conversation between the parties detailed by Harden. D. E. Powell, another soldier who slept in the same tent with appellants and the others, testified that he slept in that tent himself that night and was sick and did not sleep much; that when he went to bed Jones and Lay were not in the tent; they came after that; that he heard part of a conversation between them; that they talked very low; that they then went out and came back in the tent after 12 o’clock, and he heard one of them say, T shot that damn son-of-a-bitch,’ and another one—he could not tell which one—said, ‘There is a $10 bill for each of us.’ That he did not know Racobs personally but had seen him; that there were three together in the tent when he heard this; two came in and then a third man, but he didn’t pay any attention as 'to who he was; that he knew Jones and Lay but did not know the other. He swore that Lay opened a pocketbook and he saw him take out some bill money but he could not swear what it was. Then he threw the pocketbook into the stove. The best he could tell, they gave each one a $10 bill,” and he swore: “And the next morning when I got up Jones had a $10 bill and I asked him where he got that, and I said: ‘Where did you get it?’ and he said: ‘I don’t know whether that is any of your damn business!’ and I said, ‘I heard some of your talk *207 about holding up a street car’; and then he said: T)o me a favor’; and I said: ‘Only what is it?’ and he said: ‘If the newspaper comes in, you destroy it’; and I refused to do it.” ... On cross-examination he swore: “When those boys came in there they turned on the light.. When they put the pocketbook in the stove the light was not on, but there was a light from the stove. They turned the light on and off real quick. They took the top off the stove—the lid off the stove,— and threw the pocketbook in and put the lid back on; they turned the light off and on. As to it being dark then, well, they turned the light on and off. They turned the light on and took the money out of the pocketbook and they said: ‘Here’s ten dollars for each of us,’ and then they turned the light off again and put the pocketbook in the stove.” Albert Smith, another soldier, swore that on Saturday evening before this robbery occurred, about the Wednesday following, “I did have a conversation with one,of these defendants with reference to a pistol, on the Saturday night before this happened. . Lay came to me and tried to borrow my pistol, and said he was going to hold up the last street car coming to town. . . . He told me they were going to hold up the last car. I told him he could not get it.” . . . J. B. Kilpatrick, a deputy sheriff, who was called out to the scene of the robbery soon after it occurred, testified that they searched all around there and could not find the robbers, and in following up the railroad track, among other things, he found a hat about twenty feet from the street car tracks which was identified by some of the other witnesses as having been worn that night by Lay. Each of the appellants testified. They denied that they had anything to do with the robbery, and swore they were elsewhere that night at the time of the robbery. They each denied all the incriminatory evidence against them. They had somn witnesses to testify to their good reputation. Their testimony and that in their behalf would have been sufficient, if believed by the jury, to authorize the jury to acquit them. Evidently ihe jury did not believe them. Of course all this was for the jury exclusively. We have not given all the testimony in full but have given only some of it tending to show, as it does, the identity of the defendants and to establish that they, together with Eacobs, were the robbers. We can not hold that the testimony was insufficient to sustain their conviction. Hence, the judgment will be affirmed. Affirmed.