The State v. Spray

Decision Date19 May 1903
Citation74 S.W. 846,174 Mo. 569
PartiesTHE STATE v. SPRAY, Appellant
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. Walter B. Douglas Judge.

Reversed and remanded.

John A Gernez for appellant.

(1) The entire testimony of Arthur Damschroeder should have been excluded as incompetent, immaterial and irrelevant, and for the reason that evidence of another offense by the defendant in this cause was entirely improper. State v. Goetz, 34 Mo. 85; State v. Reavis, 71 Mo. 419; State v Reed, 85 Mo. 194; State v. Burlingame, 146 Mo. 207; State v. Harold, 38 Mo. 496; State v. Fierline, 18 Mo. 381; State v. Daubert, 42 Mo. 242; State v. Greenwade, 72 Mo. 298; People v. Molineux, 61 N.E. 286; People v. Ware, 1 N. Y. Cr. 166; People v. Mead, 50 Mich. 228; State v. Clover, 31 Ohio St. 102; People v. Greenwall, 108 N.Y. 296; People v. Jones, 31 Cal. 565. (2) Instruction number one is erroneous in failing to properly define robbery. It fails to define one of the constituents of robbery, i. e., larceny, properly, in that the instruction fails to state that the stolen property was taken and carried away with fraudulent and felonious intent. State v. Rutherford, 152 Mo. 124; State v. Lackland, 136 Mo. 26; State v. Casteel, 53 Mo. 124; State v. Ware, 62 Mo. 597.

Edward C. Crow, Attorney-General, Sam B. Jeffries, Assistant Attorney-General, and Jerry M. Jeffries for the State.

(1) Arthur Damschroeder testified over defendant's objection that defendant held him up and robbed him at the same place and about the same time that the prosecuting witness was held up and robbed by defendant. The court instructed the jury upon the purposes and objects of this testimony and how they should consider it. The evidence was competent, especially so since the defense interposed an alibi. This was so intimately connected with the crime charged as to make it a part of the very transaction and to identify the defendant as an actor therein. Hence, it was admissible. State v. Matthews, 98 Mo. 125; State v. Sanders, 36 Mo. 35; State v. Beaucleigh, 92 Mo. 490. Improper evidence showing defendant guilty of other independent crimes is not ground for reversal where the evidence clearly shows him guilty of the crime charged. State v. Owen, 78 Mo. 637; State v. Emery, 76 Mo. 348. (2) The instructions conform to the well-established rules of law, and are not objectionable. State v. McLain, 159 Mo. 347; State v. Broderick, 59 Mo. 319. In a criminal case, if the court fails to instruct on all questions of law, exceptions must be saved at the time, and the point can not be raised for the first time in the motion for a new trial. State v. Sacre, 141 Mo. 64; State v. Lamb, 141 Mo. 298; State v. Barton, 142 Mo. 450.

OPINION

FOX, J.

The indictment in this case was returned into court May 9, 1902, and by it the defendant is charged with being an habitual criminal, and with robbery. On trial he was found guilty of robbery and his punishment fixed at fifteen years' imprisonment in the penitentiary. After an unsuccessful motion for a new trial he has appealed to this court.

On the night of March 26th, at about ten o'clock in the evening, George A. Mellies, a practicing physician in St. Louis, Missouri, was held up and robbed of forty-nine dollars in money, a gold-filled watch, and a bunch of keys; the watch was worth about twenty-five dollars.

The doctor tells the story of the robbery as follows: "As I was nearing the corner of Seventeenth, that is, as I came to the corner of Sevententh and Madison streets, that is, the northwest corner, a man stepped up in front of me as I came to the corner of the pavement where Madison street and Seventeenth street meet, and when I saw the man was standing in front of me I looked up and with that I saw a revolver presented to my face and he said, 'Throw up your hands;' with that I said, 'What do you mean?' and stepped back a step; and he said, 'I mean business; no monkeying, I want what you have; if you make any move I will blow your brains out,' and with that he changed his revolver from his right hand to his left and proceeded to go through my pockets, take out my money I had in my pocketbook, and then took the money I had in my vest pocket, and then the watch, and then went in the other pocket and took the bunch of keys; after he had done that he says, 'Now don't you follow me.' I walked over Seventeenth street to Cass and telephoned down to the police station in regard to the matter."

That night about twelve o'clock two police officers arrested defendant at his home. He was taken to the police station, where he was identified by the prosecuting witness.

Notwithstanding the objection and exception of counsel for defendant, the court permitted witness Arthur Damschroeder to testify not only as to seeing the defendant some five, six or seven blocks from the place of the commission of the offense charged, but also that defendant assaulted and robbed him. The witness fixes the time of this second robbery within a few minutes of the time fixed by the prosecuting witness as to the first offense.

Police officers were also introduced, testifying as to conversations with defendant in respect to the robbery, and the identification of defendant, as made by the prosecuting witness.

Numerous witnesses were introduced by defendant, tending to establish the defense of an alibi.

We will omit from this statement the testimony upon the charge, as contained in the indictment, of being an habitual criminal, as the jury failed to find the defendant guilty of that charge.

The jury returned a verdict of guilty as to the charge of robbery, and fixed the defendant's punishment at imprisonment in the penitentiary for fifteen years. From this judgment of conviction he brings this cause to this court for review by appeal. As the defendant was only convicted of the charge of robbery as contained in the indictment, there is no necessity of discussing the errors complained of, which are alone applicable to the charge of being an habitual criminal.

The errors complained of in respect to the offense of which defendant was convicted, are:

First. That instruction number 1, as given by the court, is erroneous in its failure to properly define robbery and larceny.

Second. That instruction number 2 was not warranted.

Third. That instruction number 8 was not authorized, because based upon incompetent testimony.

Fourth. That the court erred in the admission of the testimony of witness Arthur Damschroeder, as to the commission of a separate and independent offense.

Instruction number 1 of which appellant complains, is as follows:

"If upon consideration of all the evidence in the light of these instructions you believe and find from the evidence, that at the city of St. Louis and State of Missouri, on or about the 26th day of March, 1902, or at any time within three years next before the finding of the indictment herein, the defendant, Joseph Spray, did assault the prosecuting witness, George A. Mellies, and by violence to his person, or by putting him in fear of immediate injury to his person, did, against his will, take from his person one bunch of keys, one gold-filled watch, one fob, and forty-nine dollars in money, or some part of said property or money, with the intent at the time to wrongfully take and carry away and to fraudulently convert the same to his own use and permanently deprive the owner thereof, without his consent, and that the property so taken was the property of said George A. Mellies and was of any value, then you should find the defendant guilty of robbery in the first degree, as charged in the indictment."

The complaint urged against this instruction is that it "fails to state the property was taken and carried away with fraudulent and felonious intent." This same complaint has been frequently urged in this court.

In the case of State v. Scott, 109 Mo. 226, 19 S.W. 89, it is clearly announced that the word "felonious" is merely descriptive of the grade of the offense, rather than of the criminal act which constitutes the offense, and ordinarily has no place in an instruction. In the case of State v. Johnson, 111 Mo. 578, 20 S.W. 302, MacFarlane, J., fully discusses this question and reviews all the authorities. This was a case of robbery. He says:

"It is particularly objected that the word 'feloniously' is used in the instruction to express the intent with which the act must have been done in order to make it criminal, and the word being technical should have been properly defined. It was said by Judge Henry in State v. Snell, 78 Mo 240, in speaking of this word and the necessity of defining it, that 'it is employed to classify offenses, but is not a distinct element of a crime. If the facts proved establish a felony, then the crime was committed feloniously; if they establish a misdemeanor, the offense was not feloniously done. A correct definition of the word could not have aided the jury in their deliberations.' In State v. Scott, 109 Mo. 226, 19 S.W. 89, it is said: 'The word "felonious" is descriptive of the grade of the offense, rather than of the criminal act which constitutes the offense, and ordinarily has no place in an instruction.' Robbery is made a felony by statute, and the act of robbing is felonious, and all robbery is feloniously done. The use of the word in the instruction threw no light whatever upon the transaction. A correct definition could not have aided the jury in its deliberations, nor could the failure to define it 'have prejudiced defendant's case, or been an obstacle in the way of the jury to a proper verdict on the law and facts, as was said in State v. Snell, supra. We do not wish to be understood as saying or implying that the jury should...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT