State v. Kennedy

Citation154 Mo. 268,55 S.W. 293
CourtUnited States State Supreme Court of Missouri
Decision Date23 January 1900
PartiesSTATE v. KENNEDY.

1. Act April 2, 1895, provides that the stopping of a train with intent to commit robbery thereon, or, having in any way entered any part of the train, robbing any agent or express company of any property of such agent, or the property of another in his care or custody, shall be a felony. Held, that an indictment based thereon is sufficient where it alleges every fact necessary to constitute a good indictment at common law for robbery, except that it does not aver that the money stolen was the property of the express agent in whose charge it was, but alleges that said money was the property of the express company, and where it also avers, in order to bring it clearly within the statute, that defendant feloniously entered into the railway car of a specified railroad, then and there being run and operated on said railroad in a certain county.

2. In a prosecution for robbery, it is not necessary to prove actual fear, since fear will be presumed where it is charged that the act was done violently and against the will of the person robbed.

3. In a prosecution for train robbery, under Act April 2, 1895, the indictment alleged that the robbery was committed "in the presence and against the will" of the express agent, and by violence. The evidence showed that the robbers forcibly entered the express car, and ejected the express agent by violence, and then cut the train into two parts, and moved the forward portion west about a quarter of a mile, and there blew open the safe. Held, that there was a taking by force and violence, in contemplation of law, within the presence of the agent, though he was not actually present when the safe was broken open.

4. In a prosecution for robbery, the evidence of an accomplice may be corroborated by proof of finding the mutilated money which was stolen at the places where he had stated it was hid.

5. In a prosecution for train robbery, evidence is admissible to show the purchase of an "iron-gray horse" by an accomplice for defendant, where it was shown by the accomplice, who was a witness for defendant, that he bought the horse for D., who, the state's evidence showed, was defendant himself, and where another accomplice testified that on the morning after the robbery defendant told him he had given the first-named accomplice the money with which to purchase the horse.

6. Where an accomplice is called as a witness, and testifies for defendant, he is subject to cross-examination the same as any other witness, notwithstanding, in his own trial, he could not have been required to answer to any facts which he had not voluntarily sworn to.

7. The privilege of a defendant, in a criminal prosecution, to be protected from answering facts which he had not voluntarily sworn to, is a personal one, which he alone can claim; and not a third person, who uses him as a witness.

8. In a criminal prosecution, a jailer may refer to the jail record, made by himself, to refresh his memory as to the dates when defendant was in the jail and when he was discharged.

9. In a prosecution for robbery, a jail record, referred to to show that defendant and another, both of the gang of robbers, were in jail together, just prior to the robbery, and had opportunities to concoct their plan, and to show that defendant had been discharged from jail in time to be near the place of the robbery when the other witnesses testified that they saw him there, is not objectionable on the ground that it was offered to prejudice defendant's case by showing that he had a jail record, where the witnesses were not allowed to state for what offenses defendant was in jail, since defendant might have gone into the details if he so desired.

10. In a prosecution for train robbery, under Act April 2, 1895, it is no objection to a conviction that the charter of the express company which was robbed was not submitted to the jury, where a duly-certified copy of the statute incorporating said company was offered and submitted in evidence, and its substance stated to the jury, and where several witnesses testified, without objection, that the safe from which the money was stolen belonged to the said express company.

11. The jury can convict on the uncorroborated testimony of an accomplice, if they believe it to be true, and if the facts sworn to by such witness will establish the guilt of defendant, though such testimony ought to be received with great caution.

12. Where the court fully instructs on the doctrine of reasonable doubt, its refusal to instruct that defendant is presumed to be innocent until his guilt is established is not reversible error, where the evidence abundantly sustains the verdict of guilty.

13. It is proper to refuse to instruct a jury that they should weigh the evidence as they would if an accomplice who had testified was yet untried, where such accomplice had been convicted of the same robbery before he testified in behalf of defendant, since they have a right to take into consideration the fact of the accomplice's conviction in weighing his evidence.

Appeal from circuit court, Wright county; James T. Neville, Judge.

John F. Kennedy was convicted of train robbery, and he appeals. Affirmed.

At the March term, 1899, of the circuit court of Wright county, the defendant was indicted for the statutory offense denounced by the act of the general assembly entitled "An act in relation to the crime of train robbing and to provide a penalty therefor," approved April 2, 1895. He was duly arraigned, tried, convicted, and sentenced to the penitentiary for a term of 17 years, and from that conviction appeals to this court.

On the night of January 3, 1899, at Macomb, a small flag station on the Kansas City, Ft. Scott & Memphis Railroad, in Wright county, the west-bound passenger train on said railroad was held up by armed men, and the through safe of the Southern Express Company robbed of its contents. The robbers had arranged with Oscar Ray, a farmer, for the latter to board the train at the station of Norwood, five miles east of Macomb, and pay his way to Macomb, so that the train would be stopped at the latter station. It seems that Ray was not let into the conspiracy, further than he was hired to stop the train as above stated. When the train reached Macomb, Ray got off, and went directly to his home, some three miles into the country. While the train was standing at the station of Macomb, the robbers compelled the engineer and fireman to leave the engine, and to go back and uncouple the passenger coaches from the head end of the train. Then the engine, the mail car, and combination baggage and express car were pulled away from the station, a distance between one-fourth and one-half mile, the defendant handling the engine in this movement. The combination express and baggage car was broken into, and the through safe of the Southern Express Company was blown open, and robbed of its contents, about $900 in currency and several watches. After the robbery these bandits went to their horses, which were left about one-half mile south of the track, and there mounted, and rode away in a southeast direction.

Elmer Byrum, Lewis Nigh, and Jake Fagley, farmers residing in Douglas county south of Macomb from six to eight miles, and defendant Kennedy, William Jennings, and Joseph Sheppard, were arrested and indicted for this crime. Kennedy was born and lived the greater part of his life in Jackson county, Mo., and was a locomotive engineer, but had not worked on any road for several years. It does not appear in evidence in this case where Jennings and Sheppard lived. But it was shown that Jennings had served a term in the jail at Kansas City during the summer and fall of 1898, where he occupied a cell near one occupied by defendant, Kennedy. This proof was admitted solely for the purpose of showing an opportunity for these parties to become acquainted before the commission of this crime.

The state used Byrum, one of the participants, who testified that the crime was committed by himself, his father-in-law, Nigh, Fagley, Jennings, Sheppard, and defendant. He also testified that he first met Kennedy at Nigh's house on the morning of December 12, 1898, where Kennedy, under the name of Wright, was introduced to him; that Kennedy, alias Wright, remained at Nigh's a week or 10 days, and then went over to Fagley's, where he stopped until Friday morning, the 6th, after the robbery, on January 3, 1899; that Kennedy, alias Wright, claimed that two "pals" were expected from Kansas City, and on Christmas eve these appeared at Nigh's house in the persons of Jennings and Sheppard. Jennings, Sheppard, and Nigh were arrested on Saturday, the 7th day of January, at the house of Lewis Nigh. Byrum was arrested at his home the following day. Fagley was arrested in Laclede county, 65 miles from his home, whither he and Kennedy had fled on Friday after the robbery. Kennedy was arrested at Kansas City on the morning of the 10th of January, 1899, soon after his arrival in the city over the Frisco road from Osceola. Byrum, as before stated, testified positively that the parties named committed the crime. He was fully corroborated by other witnesses as to dates, persons, places, and circumstances, and was not contradicted, so far as we can see, in a single instance, though it appeared on his cross-examination that he had testified four times regarding this matter.

To corroborate Byrum, the state showed the following facts, which the state contends establishes defendant's guilt outside and independent of Byrum's testimony:

That on the morning of December 12, 1898 (the day on which Byrum claims to have first met Kennedy, alias Wright), the...

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