State v. O. Montgomery, Alias v. Gale
| Decision Date | 23 March 1904 |
| Citation | 79 S.W. 693,181 Mo. 19 |
| Parties | THE STATE v. O. MONTGOMERY, alias FRANK GALE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. Jno. W. Wofford, Judge.
Affirmed.
A. C Durham and L. E. Durham for appellant.
(1) The information charges that the money taken from Mills was his property. The evidence shows he had no interest in the same and that the taking was not in the presence of the true owner. Such variance is fatal. State v. Lawler, 130 Mo. 366; State v. Morledge, 164 Mo. 522. (2) The court erred in giving State's instruction 2. It is not predicated on the evidence. State v. Tice, 90 Mo 112; State v. Chambers, 87 Mo. 409; State v Thompson, 83 Mo. 260; State v. Parker, 106 Mo. 225; State v. Herrell, 97 Mo. 111. (3) The instruction offered by defendant is a correct declaration of law, based on the evidence, and the court erred in refusing it. State v. Lawler, supra; State v. Morledge, supra.
Edward C. Crow, Attorney-General, and Bruce Barnett for the State.
On behalf of the State we have nothing to say in opposition to the contention made by appellant. The information alleges the money taken to have been the property of Mills, and the proof shows it to have belonged to Radford, who was not present at the time. Such a variance was held to be fatal by this court in the Lawler case, and in the Morledge case the court refused to consider the question. State v. Lawler, 130 Mo. 366; State v. Morledge, 164 Mo. 522.
The defendant was convicted in the criminal court of Jackson county of robbery in the first degree and sentenced to ten years' imprisonment in the penitentiary.
The information is in two counts, as follows:
At the trial, the State was required to elect, and the second count was dismissed.
The facts in evidence were these:
On the 4th day of January, 1903, about 10:15 p. m., the defendant entered the drugstore of Mr. T. J. Radford, located at the corner of Ninth and Locust streets in Kansas City, Missouri. Mr. Radford was at that time at his home in the suburbs of the city, and William I. Mills, his clerk, was in charge of the store. The defendant walked in, pointed a revolver at Mills, and commanded him to throw up his hands. The clerk complied with the demand, while defendant took about $ 22 in money from the cash register of the store. Putting the money in his pocket, defendant backed out of the store and escaped. Two days afterwards he was arrested by a detective and identified by Mills. The evidence of the State further showed that the money alleged to have been taken was not the property of said Mills, as charged in the information, but was the property of his employer, Mr. Radford; that Mills was a clerk in the store and had charge of the store and the money in the register, with authority to put the money received on sales therein and to take cash therefrom to make change and had no other interest in the money taken or in the store, and was not under the terms of his employment required to make good the loss of this money.
Mills testified:
The defendant introduced no evidence, but bottoms his appeal upon the fact of the variance between the allegation in the information that the money taken was the property of Mills, and the proof that it belonged, not to Mills, but to his employer, Radford.
The court refused to give the following instruction offered by the defendant, to which action the defendant excepted at the time:
"The court instructs the jury that if they find from the evidence in this case that the money alleged to have been stolen was not the property of the said William I. Mills but the property of T. J. Radford and that he had no specific property therein, then they will acquit the defendant of the charge of robbery as alleged in said information."
As the law of this State had been adjudged prior to March 24, 1903 (Laws 1903, p. 162), to constitute the crime of robbery the taking must be laid in the indictment and proven on the trial to be from the person or in the presence of the owner; either the true owner, or one having such a special property therein as a bailee, pawnee, carrier or the like, as would enable him or her to maintain an action therefor if taken out of his or her custody. [State v. Lawler, 130 Mo. 366, 32 S.W. 979; State v. Morledge, 164 Mo. 522, 65 S.W. 226.]
And it was expressly ruled in the case last cited that a clerk, such as Mills was in this case, had no such special property in the goods as would authorize the ownership of the property to be laid in him.
Since the enactment of the statute of March 24, 1903, the offense can be charged for the taking from the wife, servant, clerk or agent.
We are again confronted with the question whether the evidence in this case is sufficient to sustain the charge of robbery.
The defendant relies upon State v. Morledge, 164 Mo. 522, 65 S.W. 226, and if that case is to be followed he is entitled to a reversal. The decision in that case was predicated upon State v. Lawler, 130 Mo. 366, 32 S.W. 979. There is, however, this distinction between the two cases. In State v. Lawler, the indictment alleged an assault upon and putting in fear of Mrs. Sexauer, and the taking of the goods and money of George Sexauer, whereas in the Morledge case, the indictment charged the assault upon and putting in fear of John Resmussen and the taking of the money of said John Resmussen.
In an exhaustive decision by Judge Sherwood in Lawler's case as to the essentials of a good indictment for robbery, the conclusion was reached that the money or goods must be laid in the general or special owner, and it was said it was sufficient that they be laid in a bailee, pawnee, carrier or the like. [State v. Moore, 101 Mo. 316, 14 S.W. 182.] "But in such category a wife or servant can not be included." That the great weight of authority at common law sustains Judge Sherwood's opinion as to the possession of a wife at common law, we think there can be no doubt, because the possession of the wife was prima facie the possession of the husband, and by the common law she could have neither real nor personal property in possession. But this doctrine has been so modified by statute that it can no longer be said to obtain in most of our States.
The question presented by this record and in the Morledge case is whether a clerk left in charge of, and entrusted with the care of his employer's cash, with authority to sell his goods and make change out of the drawer, is not a person in whom the ownership of such money may be laid as against a robber?
Certainly if he is over sixteen years of age he may be convicted of embezzlement of such money if he fraudulently converts it to his own use without the consent of his master or employer. What then was the relation of Mills to the cash left in his possession in the cash register and what his obligation in respect thereto? It is no answer to the question to show that his employer, Mr. Radford, did not hold him responsible for the money which was taken from his possession by putting him in fear of his life by presenting a revolver at his head.
Is it the law that if the president or cashier of a bank should be temporarily absent from the bank, a robber may with impunity enter the bank and present a revolver or gun at the clerks left in charge and take all the money of the bank and escape punishment for robbery? Or, to state it differently, if a...
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