State v. Reich

• Decision Date: 20 March 1922
• Docket Number: No. 23020.,23020.
• Citation: 239 S.W. 835,293 Mo. 415
• Parties: STATE v. REICH.
• Court: Missouri Supreme Court

239 S.W. 835

293 Mo. 415

STATE v. REICH.

No. 23020.

Supreme Court of Missouri, Division No. 2.

March 20, 1922.

Motion for Rehearing Overruled April 7, 1922.

Appeal from "St. Louis Circuit Court; Robert W. Hall, Judge.

George Reich was convicted of robbery in the first degree, and he appeals. Affirmed.

Convicted of robbery in the first degree and sentenced to 20 years in the penitentiary, defendant appeals.

On the afternoon of the 7th of June, 1920, appellant, with James Benson, James Brendle, and Arthur Germer, who were jointly charged with him, appeared at the branch office of the Pevely Dairy Company, 5675 Delmar avenue in the city of St. Louis and robbed the cashier, Cora int. Kinder, of $1,550. On the same afternoon all of the defendants were apprehended, and appellant confessed his part in the robbery. It appears from the testimony that Brendle and Benson went into the place of business of the said dairy company, while appellant and Germer remained in an automobile, driven by appellant, a short distance from the place of the robbery and that after the robbery had been committed Benson and Brendle returned to the automobile, and were driven rapidly away.

The information, following the language of the statute, charged the defendants with having robbed the said Cora Kinder by violence and by putting her in fear. Prior to the trial appellant moved to require the state to elect, on the ground that such allegation was repugnant and duplicitous. This motion was overruled, and this, amongst other complaints, is urged as error.

During the trial, objection was made to testimony tending to show that the dairy company owned the Money taken, and not Cora M. Kinder, who was named in the information as the owner. The court admitted the testimony, and this also is urged as error. Other facts will be noted in the course of the opinion.

Bass & Bass and Hudson & Hudson, all of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen., for the State.

REEVES, C. (after stating the facts as above).

1. Appellant's motion to elect was properly overruled. The information charged that the defendants, "with force and arms, in and upon one Cora M. Kinder, feloniously did make an assault, and the said Cora Kinder, in fear of an immediate injury to her person, then and there feloniously did put," etc. Section 3307, R. S. 1019, under which said information was filed, says that—

"Every 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 to his person, or by putting him in fear of some immediate injury to his person," etc.

The information followed the statute, using the conjunctive "and" instead of the disjunctive "or" which was proper. The testimony showed that the robbery was committed both by putting Cora 11. Kinder in fear and by violence to her person. One felony was committed in two different ways. State v, Eddy (Mo. Sup.) 199 S. W. 18G; State T. Flynn, 258 Mo. 211, 167 S. W. 516.

2. The court did not err in the admission of testimony that Cora M. Kinder was cashier of Pevely Dairy Company, and only had possession of the money in that capacity. State v. Williams (Mo. Sup.) 183 S. W. 308. In the Williams Case one Jacob Auer was agent for the Wabash Railroad Company at Carrollton. The appellant in that case robbed the cash drawer after having shot Auer while standing by the stove in the ladies' waiting room. Information In that case, as here, charged the defendant with having robbed one Jacob Auer, whereas the proof showed that the property taken belonged to the Wabash Railroad in charge of Auer as agent. It was ruled that such proof was admissible. State v. Carroll, 214 Mo. 392, 113 S. W. 1051, 21 L. R. A. (N. S.) 311; State v. Montgomery, 181 Mo. 19, 79 S. W. 693, 67 L. R. A. 343, 2 Ann. Cas. 261. This ruling, both on the question of the duplicitous nature of the information and the seeming variance in the proof, did not infringe upon the right of the accused "to demand the nature and cause of the accusation," as provided by section 22, article 2, of our Constitution, as contended by appellant.

3. In the progress of the trial, the state undertook to prove the corpus delicti before showing appellant's connection with the robbery. Objection was made by his counsel on the ground that the acts and conduct of his accomplices were not binding upon him until it appeared prima facie to the court that he had engaged with those actually perpetrating the robbery in the common plan and purpose to accomplish it, or that ho was one of the conspirators. Upon the assurance from the state's attorney that such testimony would be "connected up," the objection was overruled. This is urged as error.

In the case of State v. Walker, 98 Mo. 95, 9 S. W. 646, 11 S. W. 1133, it was said:

"Where a crime is perpetrated by several persons, it is necessary to show a combination or conspiracy in order to make the acts and declarations of one the acts and declarations of all. It is for the court, in the first place, to say whether there is any evidence of a conspiracy, and for the jury to determine whether there was one, and its objects. Again, it is a matter resting largely in the discretion of the trial court as to when that proof shall be offered. The prosecution may prove the declarations and acts of one, made and done in the absence of the others, before proving the conspiracy, provided the proof is afterwards made. * * * It is therefore not material at what time the proof of a conspiracy was made."

It was said again in the case of State v. Fields, 234 Mo. 815, 138 S. W. 518, that—

"It is a principle of law in criminal procedure that the order of proof of a conspiracy, with reference to the introduction in evidence of the acts and declarations of the alleged co-conspirator, must be left largely to the discretion of the trial judge."

In case of a conspiracy, if one of the conspirators accomplishes the purpose, all of the others are equally guilty, though not even present or participating. State v. Porter (!Mo. Sup.) 199 S. W. 158. The court did not err in permitting this order of proof. In this case, moreover, appellant aided and abetted Benson and Brendle in committing the robbery by remaining at a convenient distance, in order to favor their escape. This rendered him guilty without any showing as to a conspiracy. State v. Porter (Mo. Sup.) supra, 199 S. W, loc. cit. 161; State v. Darling, 216 Mo. 450, loc. cit. 459, 115 S. W. 1002, 23 D. R. A. (N. S.) 272, 129 Am. St. Rep. 526; State v. Hayes, 105 Mo. 76, 16 S. W. 514, 24 Am. St. Rep. 360.

In State v. Walker, supra, 98 Mo. loc. cit. 110, 9 S. W. 652, the court in defining an aider and abettor quoted as follows:

"If he watched for his companions in order to prevent surprise, or remained at a convenient distance in order to favor their escape, if necessary, or was in such a situation as to be able readily to come to their assistance, the knowledge of which was calculated to give additional confidence to his companions, in contemplation of law, he was aiding and abetting."

4. Complaint is made to the admission of the testimony of Police Officer O'Brien in relation to a confession made by appellant in his presence while under arrest, without first requiring preliminary proof that such confession was voluntary. It is to be noted that no objection whatever was made to the testimony at the time it was received, and a careful examination of the record shows that the confession was made without the use of threats or promises and that it was wholly voluntary. Moreover, a confession is presumed to be voluntary until the contrary is shown (State v. Patterson, 73 Mo. 695; State v. Meyers, 99 Mo. 107, 12 S. W. 516; State v. Jones, 171 Mo. 401, 11 S. W. 680, 94 Am. St. Rep. 786; State v. Woodward, 182 Mo. 391, 81 S. W. 857, 103 Am. St. Rep. 646; State v. Armstrong, 203 Mo. 554, 102 S. W. 503; State v. Meyer, 238 S. W. 457, No. 23045 (not yet [officially] reported).

Appellant's denial of his confession or that violence was used to extort it did not overcome the prima fade case made by the state's evidence, and it became a question for the jury. State v. Brooks, 220 Mo. 74, 119 S. W. 353; State v. Meyer, supra (not yet [officially] reported).

5. Statement made by James Brendle, an accomplice, was admitted in evidence over appellant's objections. These statements were made in the presence of appellant to the same police officers who had heard his own confession and corroborated appellant's admissions. We cannot understand how this could harm appellant. He had already confessed his part in the robbery and the statement of his accomplice only tended to corroborate him. If error at all, it was harmless. State v. Moore (Mo. Sup.) 235 S. W. 1056; State v. Baldwin, 214 Mo. 290, 113 S. W. 1123; State v. Lehman, 182 Mo. 424, 81 S. W. 1118, 66 L. R. A. 490, 103 Am. St. Rep. 670.

6. Complaint is made against the admission of testimony as to the act of two of appellant's accomplices in leaving revolvers at the place of business of one John Gleason immediately after the robbery. This complaint is untenable. It was entirely competent to corroborate the other evidence of the crime and appellant's participation...