The State v. Flynn

Citation167 S.W. 516,258 Mo. 211
PartiesTHE STATE v. T. W. FLYNN, Appellant
Decision Date26 May 1914
CourtUnited States State Supreme Court of Missouri

Appeal from Greene Circuit Court. -- Hon. A. A. Johnson, Judge.

Affirmed.

John T Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.

(1) The information charges robbery in the first degree, sufficiently follows the statute and is in a form approved by this court. Sec. 4350, R. S. 1909; Kelly's Criminal Law & Procedure (3 Ed.), 625; State v. Jenkins, 38 Mo. 372; State v. Farrar, 38 Mo. 457; State v Calvert, 209 Mo. 280. Where the statute describes an offense as being committed in several different ways the information may charge in the same count the commission of the offense by one or more ways where the same are not repugnant. It is not improper to charge robbery by force and violence and robbery by putting in fear of immediate bodily harm in the same count. Bishop's Stat. Crimes (3 Ed.) sec. 244; State v. Harroun, 199 Mo. 528; State v. Calvert, 209 Mo. 286. (2) Error is alleged in that the evidence does not show that there was any value attached to the order or check introduced in evidence and proven to have been signed by the prosecuting witness after threats were made and acts of violence done to him by the defendant. The information in the case at bar charges the defendant not only with taking the order or check in question for the amount of one thousand dollars, but also with taking sixteen dollars lawful money of the United States. Instruction 1 of the court instructs the jury both as to the taking of money and an order for the payment of money, and the prosecuting witness testified to having sixteen or eighteen dollars in his pocket at the time of the assault, and that this money was missing immediately after the assault. The putting in fear of immediate bodily injury and not the value of the property is the essence of robbery. The value of the property taken is immaterial. Kelly's Crim. Law & Procedure (3 Ed.), 635; State v. Jenkins, 36 Mo. 472; State v. Howerton, 58 Mo. 581; People v. Stephens, 141 Cal. 489. The same property which is the subject of larceny is the subject of robbery. 34 Cyc. 1798; Sec. 4540, R. S. 1909. The check in question would certainly follow this section. The money might have been collected thereon under certain contingencies and, therefore, would be of some value. However, in the case at bar the appellant was charged with the taking of sixteen dollars in addition to the order mentioned and any amount of money, however small, is sufficient property to be the subject of larceny. Kelly's Crim. Law & Procedure, 635; 2 Russell Cr. (6 Ed.), 80; 4 Blackstone Com., 643; Bonsall v. State, 35 Ind. 460; State v. Jenkins, 36 Mo. 372; State v. Howerton, 58 Mo. 581.

FARIS, J. Walker, P. J., and Brown, J., concur.

OPINION

FARIS, J.

Defendant, convicted in the criminal court of Greene county of robbery in the first degree and having had assessed against him as punishment therefor imprisonment for a term of five years in the penitentiary, has, after the usual motions for a new trial and in arrest of judgment, appealed to this court.

Defendant is not represented here by counsel and no brief has been filed by him or for him. Below he was represented by counsel appointed in that behalf by the trial court.

Going through the record, as in duty bound, we note that the information was attacked both by a motion to quash urged before the trial and by a timely motion in arrest of judgment. In view of these attacks upon the information and since thereby a debatable question is presented, we set out below this information, caption and verification omitted:

Sam M. Wear, Prosecuting Attorney within and for the county of Greene, in the State of Missouri, under his oath of office informs the court that T. W. Flynn, late of the county and State aforesaid, on the day of January, A. D. 1913, at the county of Greene and State of Missouri, did then and there in and upon one George Dooley, unlawfully and feloniously did make an assault and sixteen dollars lawful money of the United States of the value of sixteen dollars and one order on the Citizens Bank, a corporation duly organized and doing business under the laws of the State of Missouri, for one thousand dollars of the value of one thousand dollars, said order being of the following tenor:
"Jan. 11, 1913.
"To the Citizen Bank Springfield Missouri
Pay to the order of T. W. Flynn
One thousand dollars $ 1000.
George Dooley."
All of the aggregate value of one thousand and sixteen dollars, the personal property of the said George Dooley, from the person and in the presence and against the will of the said George Dooley, by force and violence to the person of the said George Dooley, and by putting the said George Dooley in fear of some immediate injury to his person, feloniously did rob, steal, take and carry away, contrary to the form of the statute in such cases made and provided against the peace and dignity of the State. Sam W. Wear,
Prosecuting Attorney.

It is strenuously urged in a number of assignments of error, both in the motion for a new trial (where among other places it is proper to urge them) and in the motion in arrest (where it is not proper to urge them), that the evidence adduced upon the trial was not sufficient to sustain the verdict. These contentions render it necessary to briefly set out the facts as the evidence discloses them.

As the information itself forecasts, the person alleged to have been robbed was one George Dooley. Dooley was at the time of the trial sixty-six years of age, engaged in farming in the country near Springfield and also in the business of peddling butter, eggs and feed in the latter city. Dooley had been acquainted with the defendant Flynn, as well as with the wife of defendant, for about four years prior to the alleged robbery and had at divers times during said period sold butter, milk and eggs both to Flynn, and to Flynn's wife during defendant's absence in Oklahoma. The alleged robbery occurred on the night of January 11, 1913, about the hour of twelve o'clock midnight, at the residence of defendant. Taking first the testimony of Dooley, the prosecuting witness, the facts as shown by the State were that on the morning of January 11, Dooley had come into Springfield with butter and milk and had gone to the house of defendant sometime in the forenoon of that day and left some butter there, and had, it seems, made arrangements with defendant's wife to eat his dinner at the house of the latter, which he subsequently did at about three o'clock in the afternoon. At about the hour of ten o'clock that night Dooley again went to the residence of defendant for the purpose, as he says, of obtaining a jug which he had left there. He found the wife of defendant at home apparently alone, and made inquiry of her as to whether she was alone and as whether anyone was coming to stay with her that night. Mrs. Flynn stated that she was alone but that she expected someone to come and stay with her. Dooley says that he was also told by Mrs. Flynn that defendant was absent in the "oil fields," which "oil fields" appear to have been those at Tulsa, Oklahoma. Dooley further says that after talking to Mrs. Flynn for some little time she undressed in his presence and went to bed, but that while he took his shoes and overcoat off he did not himself go to bed, though he sat on the edge of the bed in which Mrs. Flynn lay, and while he was thus sitting on this bed and at about the hour of twelve o'clock the defendant suddenly pushed the door open, rushed into the room and assaulted him by striking him over the head with some sort of instrument; that this attack and these blows dazed him, and afterward from being beaten in the face by defendant, either with his fist or some weapon or other instrument, witness became partially unconscious, and while in this condition from these several attacks his pocket-book, containing some $ 16 or $ 18, his watch and some papers and documents not here pertinent, were taken from him. After the conclusion of the assault the defendant wrote out and presented a paper for his signature, which paper the witness signed, after being threatened with death unless he did so. This is the order for the payment to defendant of $ 1000, a copy of which is set out in the information.

Other testimony in the case shows that Dooley was very seriously injured by this assault; that he was found at the restaurant of one McGinnis distant some four blocks from defendant's house shortly after this assault, apparently in a dazed or semi-conscious condition and unable to give a very clear or coherent account of the manner in which he had been injured. The physician who was called to attend him at about the hour of one o'clock in the morning of January 12, testified that he found him incoherent and in a semiconscious condition. On the Monday following the assault upon Dooley, the defendant presented to the cashier of the Citizens Bank the order set out in the information and asked that it be cashed. The cashier refused to honor this paper in the form in which it was, but wrote out a check on the bank and asked defendant to procure Dooley's signature to such check. This does not appear from the record to have been done, nor does it appear that any money or other thing of value was ever obtained by defendant upon the order in question. When defendant was arrested the officer making the arrest found the watch of prosecuting witness in the possession of defendant.

On the part of defendant the latter testifying for himself, admitted that he had assaulted Dooley, but denied that he had taken his pocket-book or money and averred that the order which he attempted to cash and which is set...

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