State v. Calvert

• Decision Date: 18 February 1908
• Citation: 107 S.W. 1078,209 Mo. 280
• Parties: STATE v. CALVERT.
• Court: Missouri Supreme Court

107 S.W. 1078

209 Mo. 280

STATE v. CALVERT.

Supreme Court of Missouri, Division No. 2.

February 18, 1908.

1. ROBBERY — INFORMATION — SUFFICIENCY.

An information alleging that defendant in and upon another "unlawfully and feloniously did make an assault," followed by the constituent facts necessary in an information for robbery in the first degree, is not open to the objection that it does not charge that the assault was felonious.

2. INDICTMENT — SUFFICIENCY — DESCRIPTION OF MONEY.

Under Rev. St. 1899, § 2531 [Ann. St. 1906, p. 1506], providing that, if in an information it shall be necessary to make an averment as to money it shall be sufficient to describe such money simply as money without specifying any particular coin, a description of money as "seventeen dollars lawful money of the United States, of the value of seventeen dollars," is sufficient.

3. SAME — REPUGNANT ALLEGATIONS.

Allegations in an information, under Rev. St. 1899, § 1893 [Ann. St. 1906, p. 1295], making any person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence or by putting him in fear, guilty of robbery in the first degree, charging the offense in the conjunctive, both by taking the property by violence and by putting in fear, are not repugnant because charging the robbery to have been committed in different ways.

4. CRIMINAL LAW — MOTION IN ARREST — GROUNDS FOR — DEFECTS IN INFORMATION.

The objections that an information, under Rev. St. 1899, § 1893 [Ann. St. 1906, p. 1295], for robbery in the first degree, charges the offense in the conjunctive, both by taking by violence and by putting in fear, comes too late where raised for the first time on motion in arrest.

5. SAME — APPEAL — PRESENTATION AND RESERVATION OF ERROR — OBJECTIONS TO INFORMATION.

The objection that an information, under Rev. St. 1899, § 1893 [Ann. St. 1906, p. 1295], for robbery in the first degree, charges the offense in the conjunctive, by taking the property by violence and by putting in fear, is waived by failure to move to quash or to demur or to compel the state to elect, and cannot be raised for the first time on appeal.

6. SAME — HARMLESS ERROR — INSTRUCTIONS.

Defendant charged with robbery could not complain of the instruction that if defendant took the property of another from his person and against his will, by force and violence to his person, by putting him in fear, then he was guilty of robbery in the first degree, on the ground that it applied to a crime not charged in the information, which charged the taking of the property of another from his person and against his will, by force and violence, and by putting him in fear, since, if erroneous, the error was in his favor and not prejudicial to him.

7. ROBBERY — EVIDENCE — SUFFICIENCY.

Evidence held to support a conviction of robbery.

Appeal from Circuit Court, Jackson County; Ben J. Casteel, Special Judge.

Edward Calvert was convicted of robbery in the first degree, and he appeals. Affirmed.

W. F. Riggs, for appellant. The Attorney General and N. T. Gentry, for respondent.

BURGESS, J.

At the September term, 1906, of the criminal court of Jackson county, the defendant, under an information filed by the prosecuting attorney of said county, was convicted of robbery in the first degree, and his punishment assessed at five years in the penitentiary. After ineffectual motions for new trial and in arrest, the defendant appealed.

The evidence on the part of the state tended to prove that John Weak, the prosecuting witness, was a dairyman, and lived near Kansas City, Mo. About 7 o'clock, on the evening of September 21, 1906, Weak went to a rooming house at No. 1425 Grand avenue, Kansas City, and rented a room for the night, the landlady in charge being one Mary Snyder. His room not being ready for occupancy, Weak went out to the back porch where were three men drinking beer, the defendant being one of them. The defendant accosted Weak, and suggested that he purchase some beer for the crowd, whereupon Weak gave the defendant 50 cents for that purpose, and the latter left, soon afterwards returning with a bucket of beer. He poured out three glasses of beer, handing one each to Mary Snyder, Lee Planet and Joe Morris. He then went into the kitchen, and soon returned with two more glasses of beer, one of which he gave Weak and drank the other himself. Weak drank his glass of beer, and immediately complained that it was bad, and not the kind he was used to drinking. He then went to his room, and the defendant followed him. Before the defendant left the porch, however, he exhibited a half-pint whisky bottle, stating that he had put some of the whisky into Weak's beer, and that he wanted to "put him out." He further said to Lee Planet that he wanted to get what Weak had on him. While Weak was sitting in his room the defendant came in, knocked him down, choked him, and took $19.80 out of his pants pockets. Lee Planet and Mary Snyder both testified that they saw the defendant knock Weak down and get on top of him. Morris, who was on the back porch drinking, testified that he saw the defendant follow Weak, and also heard defendant say, "he has got money." Mary Snyder further testified that the defendant, after his assault upon Weak, came out on the porch and said, "I got half a dollar off this old man;" that he then pulled out a bottle in which was a little whisky, and said, "I gave all of that to him but this little bit;" that she asked him why he did that, and he said, "I needed the money." After the defendant left him, Weak left the house and reported the assault and robbery to the police. About 10 o'clock that night police officer Gleason met the defendant and his wife on Grand avenue, and asked the defendant if he had been to this rooming house on Grand avenue that night, and defendant assured him that he had not. The defendant was arrested next morning at his home in...