McCarthy v. Eidson

Citation262 S.W.2d 52
Decision Date09 November 1953
Docket NumberNo. 44022,44022
PartiesMcCARTHY v. EIDSON, Warden.
CourtMissouri Supreme Court

No appearance for petitioner.

John M. Dalton, Atty. Gen., Samuel M. Watson, Asst. Atty. Gen., for respondent.

TIPTON, Judge.

Habeas corpus: In the circuit court of Jefferson County, Missouri, the petitioner pleaded guilty to an information charging him with the crime of robbery in the first degree, and his punishment was assessed at ten years' imprisonment in the state penitentiary.

The information to which the petitioner pleaded guilty on February 23, 1950, was as follows:

'J. W. Thurman, Prosecuting Attorney within and for the County of Jefferson, in the State of Missouri, informs the court that Lawrence Robert Coleman, Robert James Love and Edward Junior McCarthy on the 6th day of February, 1950, at and in the County of Jefferson and State of Missouri, did then and there, with specific criminal intent, wilfully, unlawfully and feloniously in and upon one robert Simmons unlawfully and feloniously did make an assault and $30.00 in silver and currency of the value of $30.00, the property of Earl Petrie, from the person, in the presence and against the will of the said Robert Simmons then and there by putting the said Robert Simmons in fear of some immediate injury to his person, feloniously did rob, steal, take and carry away, contrary to the form of statute in such cases made and provided, and against the peace and dignity of the State of Missouri.'

Petitioner contends that this information is fatally defective because it did not allege that Robert Simmons was the servant, clerk or agent of Earl Petrie, the owner of the property taken from Simmons. Section 560.120 RSMo 1949, V.A.M.S., provides that every person 'who shall be convicted of feloniously taking the property of another from the person of his wife, servant, clerk or agent, in charge thereof, * * * by putting him or her in fear of some immediate injury to his or her person, shall be abjudged guilty of robbery in the first degree.'

This exact contention was ruled adversely to petitioner in the case of State v. Wilson, Mo.Sup., 237 S.W. 776. In that case the indictment stated that defendant 'with force and arms, in and upon one Herbert W. Allen, unlawfully and feloniously did make an assault, and $3,163.23, lawful money of the United States, * * * the money and personal property of Daniel Frankel and Julius Lyons, copartners doing business under the style and firm name of Frankel, Frank & Co.' In holding the indictment sufficient, we said:

'An examination of the indictment discloses its failure to allege that Allen was a 'servant, clerk or agent in charge thereof' in accordance with the language of the statute (section 3307, R.S.1919 [V.A.M.S. 560.120]).

'Section 3908, R.S.1919 [V.A.M.S. Sec. 545.030], commonly known as the Statute of Jeofails, affirms the validity of all indictments or informations where the defects or imperfections do 'not tend to the prejudice of the substantial rights of the defendant upon the merits.' The indictment informed defendant that he was charged with taking from one Allen with force and violence and against his will the sum named, and that said money was the property of Frankel, Frank & Co. This was sufficient, and the inference that Allen was agent, servant, or clerk, of the owners appeared without the formal allegation. This does not violate the rule of criminal pleading to the effect that nothing shall be left to intendment or implication, and that the defendant shall be clearly apprised of the nature and cause of the accusation against him. State v. Stegner, 276 Mo. 427, 207 S.W. 826; State v. Massey, 274 Mo. 578, 204 S.W. 541.

'The rule that nothing in an indictment must be left to intendment or implication refers to such necessary allegations as will inform the defendant of the nature of the charge. State v. Hascall, 284 Mo. 607, 226 S.W. 18. The indictment in question was returned under section 3307, R.S. 1919, and was sufficient without the allegation mentioned.' 237 S.W. loc. cit. 777.

The case of State v. Davis, Mo.Sup., 58 S.W.2d 305, loc.cit. 307, is another case in which this court ruled adversely to petitioner's contention in the case at bar. In ruling the Davis case, we said:

'The indictment contains all the elements of the charge of robbery in the first degree, set out in the statute, section 4058, R.S.Mo. 1929 (Mo.St.Ann. Sec. 4058) [V.A.M.S. Sec. 560.120], save that it does not in terms describe Frank B. Moore as the servant, clerk, or agent of the Interstate National Bank. This court expressly held, in State v. Wilson (Mo.Sup.) 237 S.W. 776, that this omission is cured by the Statute of Jeofails, section 3563, R.S.Mo. 1929 (Mo.St.Ann. Sec. 3563) [V.A.M.S. 545.030]. The indictment informed the defendant that he and others were charged with taking from Frank B. Moore, with force and arms and against his will, the sum named and that this money was the property of the Interstate National Bank. The inference that Moore was the servant, clerk, or agent of the bank may properly be drawn without violation of the rule that nothing shall be left to intendment. State v. Wilson, supra, and cases cited. This omission aside, the indictment was sufficient in form and substance.'

We are unable to distinguish the Wilson and Davis cases from the case at bar.

In the case of State v. Craft, 299 Mo. 332, 253 S.W. 224, loc.cit. 226-227, we said:

'The gravamen of the offense consists in the taking by violence, or by putting in fear, the money or property of another from one who was at the time in the lawful possession of the same. Whether that one was the owner or the legal custodian is immaterial so far as the charging of the offense is concerned. The words of the statute, therefore, defining those from whom the unlawful taking of property shall constitute robbery, may be disregarded as words of description rather than of limitation. This we have held by implication in recognizing the validity of indictments or...

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9 cases
  • State v. Johnstone, 47366
    • United States
    • Missouri Supreme Court
    • 14 Marzo 1960
    ...79 S.W. 693, 694 et seq., 67 L.R.A. 343; State v. Carroll, 214 Mo. 392, 113 S.W. 1051, 1053(2), 21 L.R.A.,N.S., 311; McCarthy v. Eidson, Banc, Mo., 262 S.W.2d 52, 53, 54. The information alleged that defendant's "Christian name in full is unknown to" the prosecuting attorney. The caption of......
  • Pirtle v. Cook
    • United States
    • Missouri Supreme Court
    • 25 Noviembre 1997
    ...enter new judgments, but are confined to the record, no notice or opportunity to be heard need be given. Rule 74.06(a); See McCarthy v. Eidson, 262 S.W.2d 52, 54 (Mo. banc 1953); Goldfarb, 527 S.W.2d at 431-32. Finally, because a correction of the record does not affect the court's judgment......
  • State v. Pughe
    • United States
    • Missouri Supreme Court
    • 11 Mayo 1966
    ...of property shall constitute robbery, may be disregarded as words of description rather than of limitation. * * *' McCarthy v. Eidson, Mo.Sup., 262 S.W.2d 52, 53, 54. The next question is the legal sufficiency of the testimony given by Mrs. Goebel purporting to identify appellant as the cul......
  • State v. Barlett, 8410
    • United States
    • Missouri Court of Appeals
    • 3 Septiembre 1965
    ...and Information Sec. 139c, p. 1037.2 State v. Hass, Mo.App., 82 S.W.2d 621; State v. Harris, supra, Mo., 313 S.W.2d 664(3); McCarthy v. Eidson, Mo., 262 S.W.2d 52(1); State v. Asher, Mo., 246 S.W. 911; State v. Hall, 130 Mo.App. 170, 108 S.W. 1077(3).3 State v. McCloud, Mo.App., 313 S.W.2d ......
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