253 S.W. 224 (Mo. 1923), State v. Craft

Citation:253 S.W. 224, 299 Mo. 332
Opinion Judge:WALKER, J.
Party Name:THE STATE v. TOM CRAFT, Appellant
Attorney:Henson & Woody for appellant. Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.
Case Date:June 11, 1923
Court:Supreme Court of Missouri
 
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Page 224

253 S.W. 224 (Mo. 1923)

299 Mo. 332

THE STATE

v.

TOM CRAFT, Appellant

Supreme Court of Missouri, Second Division

June 11, 1923

Appeal from Butler Circuit Court. -- Hon. Almon Ing, Judge.

Affirmed.

Henson & Woody for appellant.

(1) Defendant was denied the constitutional right to be tried by an impartial jury of his country. Jurors O'Dell, Abington, Ham and Brickell had heard the testimony of Waller, the cashier, and O. D. Brown, the State's principal witness, in the case against Yates and Adkins. The court erred in overruling defendant's challenge to these jurors, and permitted them to sit on the panel out of which defendant was required to select the panel of twelve who were to try him. Bill of Rights, sec. 22; Gibney v. Transit Co., 204 Mo. 704, 717; Theobald v. Transit Co., 191 Mo. 395, 416; State v. Fullerton, 90 Mo.App. 411; Tatlow v. Grantham, 66 Mo.App. 509; Pearcy v. Ins. Co., 111 Ind. 59; Johnson v. Tyler, 1 Ind.App. 359; State v. Burnside, 37 Mo. 343; State v. Wyatt, 50 Mo. 309; State v. Taylor, 64 Mo. 358. (2) Robbery in the first degree can only be committed in one of two ways under the statute: (a) By feloniously taking the property of another from his person, or in his presence, against his will, by violence to his person, or putting him in fear of some immediate injury to his person, or, (b) by feloniously taking the property of another from the person of his agent in charge thereof, and against the will of his agent, by violence to the person of such agent or putting such agent in fear of some immediate injury to his person. The information does not charge, nor does the proof show, the commission of the crime of robbery in the first degree, and defendant's demurrer at the close of the whole case should have been sustained. R. S. 1919, sec. 3307; State v. Owens, 268 Mo. 481; Abbott v. Western U. Tel. Co., 204 S.W. 769; Northern Securities Co. v. United States, 193 U.S. 197, 8 L.Ed. 679, l. c. 709; United States v. Morris, 14 Pet. 464, 10 L.Ed. 534; Com. v. Martin, 17 Mass. 359; Moore v. Telegraph Co., 164 Mo.App. 171; 33 Cyc. 1182-1187; State v. Butler, 178 Mo. 272; Riddick v. Territory, 1 Mo. 147; State v. Shortell, 174 Mo.App. 159; State v. McMahon, 234 Mo. 611; State v. Koock, 202 Mo. 223, 235; State v. McCance, 110 Mo. 289, 296; State v. Schuchmann, 133 Mo. 117; State v. Howard, 137 Mo. 289, 296; State v. Reed, 125 Mo. 43, 48; State v. Bryant, 90 Mo. 534, 537; Ex parte Helton, 117 Mo.App. 609, 625; State v. Gritzner, 134 Mo. 512, 527. (3) The court erred in admitting the testimony of witnesses concerning alleged conversations between them and defendant with reference to robbing the Bank of Qulin, for the reason that such conversations, even if they were had, did not tend in any way to prove the crime charged. State v. Monroe, 273 Mo. 341; State v. Burlingame, 146 Mo. 226; State v. Stike, 149 Mo.App. 105; State v. Smith, 250 Mo. 274; State v. Spray, 174 Mo. 569; State v. Teeter, 239 Mo. 485; State v. Horton, 247 Mo. 657; State v. Hyde, 234 Mo. 250; 8 R. C. L. sec. 200, p. 206. (4) Statements, acts or declarations made by a co-conspirator after the common criminal enterprise has been accomplished, are inadmissible against another co-conspirator. Instruction numbered six is therefore erroneous because it did not limit the statement or statements to a time prior to the accomplishment of the alleged common criminal enterprise. (5) Instruction numbered two is erroneous because it does not define the term "corroboration." State v. Sprague, 149 Mo. 409; State v. Donnely, 130 Mo. 642. (6) Instruction numbered seven is prejudically erroneous for the reason that there is no evidence upon which to base it, and because it injects issues into the case not raised by the evidence. State v. Goodwin, 213 S.W. 264. (7) Instruction numbered five is further erroneous because it assumes that a crime has been committed, and that defendant was in some manner connected with the commission thereof. State v. Mills, 272 Mo. 526; State v. Vaughn, 141 Mo. 514; State v. Lee, 272 Mo. 171.

Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.

(1) The information is sufficient. It contains all necessary averments required to properly charge the crime of robbery in the first degree and fully informs the defendant as to the charge he must meet. Sec. 3307, R. S. 1919; State v. Lamb, 141 Mo. 301; State v. Calvert, 209 Mo. 286; State v. Flynn, 258 Mo. 214, 224; State v. Williams, 183 S.W. 309. (a) Section 3307 defines but a single offense of robbery, but sets out two methods of perpetrating the one crime defined. The information charges, in the conjunctive, that the offense was committed in both ways. Not being inconsistent with or repugnant to each other, the pleading is not duplicitous. State v. Flynn, 258 Mo. 219-224; State v. Williams, 183 S.W. 309; State v. Reich, 239 S.W. 836; State v. Eddy, 199 S.W. 187. (b) "Assistant cashier and in charge of the Bank of Qulin," is tantamount to "clerk or agent in charge of the Bank of Qulin." State v. Wilson, 237 S.W. 777; State v. Reich, 239 S.W. 838. (c) "Violence to the said Irvin Waller" is tantamount to "violence to the person of the said Irvin Waller." (2) Appellant complains that the trial court committed reversible error in failing to discharge Jurors O'Dell, Abington, Ham and Brickell, upon challenge for cause. This complaint is without merit. The questions put to and answers received from these jurors produced ample information to enable appellant to exercise judiciously his right of peremptory challenge. State v. Mann, 83 Mo. 596; State v. Herring, 268 Mo. 529. (a) Discretion as to sufficiency of examination rests in the trial court. State v. Garth, 164 Mo. 562; State v. Brooks, 92 Mo. 589; State v. Myers, 198 Mo. 247. (b) No specific ground of challenge was given by appellant to said jurors. The grounds for challenge must be stated. The trial court is entitled to know the reason for challenge. Sec. 6632, R. S. 1919; State v. Reed, 137 Mo. 132; State v. Taylor, 134 Mo. 142; State v. Myers, 198 Mo. 248. (3) The testimony of witnesses, complained of by appellant related to conversations with this appellant pertaining to this identical crime, to-wit, the robbery of the Bank of Qulin and was entirely competent. Authorities cited by appellant on this point refer to testimony of separate and distinct offenses from the one on trial, and are not in point here. (4) The gist of Instruction 6 complained of by appellant, is that the jury must first find a conspiracy or common design to rob the Bank of Qulin before they could consider any statement or statements made by Brown, Nicholson, Yates or Adkins, or either of them out of the presence of appellant, and it is a correct statement of the law regarding a conspiracy. The use of the words "to rob" and "to commit" limits the time of such statements anterior to the robbery. (5) Instruction 2, is in form often approved by this court and is not subject to the criticism made by appellant that it fails to define the word "corroborate." State v. Dawson, 124 Mo. 422; State v. Crab, 121 Mo. 565; State v. Harkins, 100 Mo. 672. (6) The giving of Instruction 5, does not constitute reversible error. The gist of it is simply a statement that it is not necessary, to prove an offense, that the witnesses be eye-witnesses, but that facts and circumstances from which the offense may be reasonably and satisfactorily inferred are sufficient proof. When read together with all the other instructions, as it must be, no substantial right of the appellant has been violated. (7) A conspiracy may be shown by circumstantial evidence alone, and in the reception of such evidence great latitude is allowed. The facts and circumstances stated in evidence in this case show a conspiracy between Craft, Yates, Adkins, Brown and Nicholson, to rob the Qulin bank. State v. Walker, 98 Mo. 104; State v. Fields, 234 Mo. 623; State v. Roberts, 201 Mo. 728; State v. Kolafa, 236 S.W. 304; State v. Hembree, 242 S.W. 914. (8) The evidence amply supports the verdict and this court will not interfere. State v. Rumfelt, 228 Mo. 456; State v. Fields, 234 Mo. 627; State v. Hembree, 242 S.W. 914.

OPINION

Page 225

[299 Mo. 338] WALKER, J.

Appellant was charged with others by information in the Circuit Court of Butler County with robbery in the first degree, under Section 3307, Revised Statutes 1919. A severance was granted, and he was tried, found guilty and his punishment assessed at ten years' imprisonment in the penitentiary. From this judgment he appeals.

On the second day of February, 1921, the bank of Qulin, Butler County, was robbed by two armed men, afterwards shown by their confessions to have been O. D. Brown and Rolla Nicholson. On the afternoon of the day stated they entered the bank, which was at the time in charge of the assistant cashier, and commanded him and two others named Adkins and Yates who were in the bank, to throw up their hands. Adkins and Yates were then ordered into the vault and the cashier was required to open the safe. Something more than three thousand dollars was taken therefrom by the robbers, who then ordered the cashier into the vault, and he and Adkins and Yates were locked in. The robbers then went out at the rear door of the bank, mounted the horses of Adkins and Yates, which had been hitched there, and rode away. A short time thereafter those confined in the vault, with the aid of a screw-driver or monkey-wrench, [299 Mo. 339] which had been known by Yates to be in the vault, succeeded in loosening the bolts of the vault door from the inside and made their exit therefrom. About two hours thereafter Brown and Nicholson were apprehended about six miles from Qulin. They were brought to Poplar Bluff and lodged in jail. Two or three days thereafter they made a confession in which they implicated Adkins, Yates and the appellant as accomplices...

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