State v. Citius

• Citation: 56 S.W.2d 72,331 Mo. 605
• Parties: The State v. John Citius, Appellant
• Decision Date: 14 December 1932
• Court: United States State Supreme Court of Missouri

56 S.W.2d 72

331 Mo. 605

The State v. John Citius, Appellant

Supreme Court of Missouri

December 14, 1932

Appeal from Pemiscot Circuit Court; Hon. John E. Duncan Judge.

Affirmed.

McKay & Peal and Hooker & Gannon for appellant.

(1) The court erred in refusing to sustain defendant's oral request at the close of all the evidence in the case, to require the State to elect which offense charged in the information it would go to the jury on, either for the robbing of A. A. Polk as charged or for the robbing of Nellie Polk as charged in the information. Kelly's Criminal Law and Procedure, p. 153, sec. 200; State v. Healy, 50 Mo.App. 243; State v. Lund, 49 Kan. 209; State v. Link, 315 Mo. 192, 286 S.W. 12. (2) The court erred in giving on behalf of the State instructions 1, 5, and 7. (a) Instruction 1 is bad for the reason that the defendant is charged in the conjunctive with having robbed A. A. Polk and Nellie Polk, and the instruction lessens the burden of the State by submitting to the jury a robbery of the two persons alternatively instead of in the conjunctive as charged in the information. State v. Jackson, 146 S.W. 1166; State v. Washington, 146 S.W. 1164; State v Brotzer, 156 S.W. 1078; State v. Schenk, 142 S.W. 263; State v. Standley, 232 Mo. 23; State v. Palmberg, 199 Mo. 233. (b) Instruction 5 is erroneous for the reason it tells the jury that if they find from the evidence beyond a reasonable doubt that the defendant, John Citius, guilty of robbery in the first degree by means of a dangerous and deadly weapon as charged in the information they should convict him, etc. The jury should have been directed to robbery in the first degree as defined by the court in other instructions in the case rather than referring the jury to the charge contained in the information. State v. Herring, 268 Mo. 514; State v. Constitino, 181 S.W. 1155; State v. Marion, 235 Mo. 138; State v. Scott, 109 Mo. 226; State v. Brown, 104 Mo. 365. (c) Instruction 7 is erroneous in that the instruction directed the jury that if they found any witness that wilfully swore falsely upon any material fact in evidence, then they might disregard that part of such witness' testimony, while the law says that they might disregard the whole or any part of such testimony. Kelly Criminal Law and Procedure, p. 359, sec. 396; State v. Mix, 15 Mo. 153; State v. Dwire, 25 Mo. 553; State v. Cushing, 29 Mo. 215; State v. Beaucleigh, 92 Mo. 490; State v. Hickam, 95 Mo. 322; State v. Swisher, 186 Mo. 1; State v. Shelton, 223 Mo. 118; State v. Buchler, 103 Mo. 203; State v. Shoenwald, 31 Mo. 147; State v. Anderson, 19 Mo. 241. (3) The information in this case is bad for the reason that said information jointly charges the defendant, John Citius, with one Elmer Edwards having committed a robbery but in so doing charges the defendant, John Citius, under the Habitual Criminal Act, which requires additional proof to show his guilt under said act to that which was necessary to prove the guilt of his co-defendant, Elmer Edwards, and under which indictment the punishment was not uniform or equal against each defendant. On a joint charge against two persons to convict both, a joint act must be proven. In this case it was necessary under the indictment to convict Citius as he was charged, to prove in addition to what was necessary for conviction of Edwards, to-wit: proof of prior convictions of Citius, so that under the indictment the same quantum of proof is not required to convict the two defendants under the charge contained in the information and the punishment is not uniform in that the punishment of Citius might have been higher than the punishment of his co-defendant, Edwards. State v. Smith, 37 Mo. 58; State v. Bond, 4 Mo. 53; State v. Edwards, 60 Mo. 490; State v. Gay, 10 Mo. 440; State v. Hendricks, 193 Mo.App. 660.

Stratton Shartel, Attorney-General, for respondent; Sid C. Roach of counsel.

(1) The information properly charges robbery in the first degree by means of a dangerous and deadly weapon, and properly alleges prior convictions. It is sufficient as to both form and substance. Secs. 4058, 4061, 4461, 4462, R. S. 1929; State v. Taylor, 18 S.W.2d 474. The court did not err in refusing to sustain defendant's oral request at the close of all the evidence to require the State to elect, inasmuch as only one offense was committed. In the case of United States v. Scott, 74 F. 213, it was held -- "By the great weight of authority the prosecutor is at liberty to charge, in a single count as a single offense, a single act or transaction in violation of law, altho that act or transaction involves several similar violations of law with respect to several different persons. 31 C. J. sec. 327, p. 769; State v. Morphine, 37 Mo. 373; State v. Reisenny, 203 S.W. 472; State v. O'Connell, 144 Mo. 387; State v. Maggard, 160 Mo. 469; Henry v. United States, 263 F. 463. There are some instances in which two crimes are of the same nature and so connected they constitute but one legal offense, in which case both may be charged in the same count. 31 C. J. sec. 330, p. 772; State v. Chaplain, 101 Kan. 413; Hutchcroft v. Com., 242 S.W. 580. The test of permitted joinder of counts in an Information is whether offenses arose in the same transaction and are so cognate that judgment on one would bar trial for others. State v. Christian, 161 S.W. 736; State v. Nerini, 6 S.W.2d 853; State v. Tally, 12 S.W.2d 28. The Information is not duplicitous. It is proper to charge one with being an habitual criminal in the same count in which the crime is charged. State v. Taylor, supra; State v. Kilcullen, 256 S.W. 739; State v. Macon, 287 S.W. 775; State v. Ortel, 280 Mo. 129. (2) The court committed no error in giving Instruction 5. In case State v. Decker, 33 S.W.2d 958, this court held that an instruction in bank robbery prosecution was not erroneous, confusing or misleading because it referred to the information. The same holding is made in case State v. Nasello, 30 S.W.2d 132. An instruction containing words "as charged in the first count of the information," held not objectionable as referring jury to information for issues, where the instruction sets forth all facts necessary to convict. State v. Moone, 283 S.W. 468; State v. Hembree, 242 S.W. 911; State v. Byrd, 213 S.W. 35; State v. Langford, 240 S.W. 167. Appellant complains of the action of the trial court in giving Instruction 7. Cautionary instructions telling jury they were at liberty to reject whatever portion of witnesses testimony they believed to be false held not objectionable. State v. Brown, 270 S.W. 275; State v. Sloan, 274 S.W. 734; State v. Hale, 156 Mo. 102.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Appellant, John Citius and also Elmer Edwards were jointly charged with robbery in the first degree by information filed by the Prosecuting Attorney of Pemiscot County, Missouri, the information also containing apt allegations intended to invoke against Citius the Habitual Criminal Act. The court granted Elmer Edwards a severance and the State elected to try appellant Citius first. He was found guilty of robbery in the first degree as charged in the information and his punishment was assessed by the jury at fifty years' imprisonment in the State Penitentiary. His motion for a new trial having been overruled and sentence having been passed, Citius appealed to this court.

The evidence showed that A. A. Polk and Nellie Polk, his wife both of Seabrook, a town near Houston, Texas, were traveling by automobile from St. Louis towards home on Highway 61. At a point a few miles south of the city of Caruthersville in Pemiscot County, Missouri, on the night of July 13, 1931, the Polks drove into the woods beside the highway and camped for the night. They set their cots under the trees beside the automobile and had just retired when they observed two men approaching them from the highway. Mr. Polk took his pistol from under his pillow and inquired of the men what they wanted. One of the men, whom Polk later identified as appellant John Citius, replied by inquiring: "What are you doing on my land?" Polk answered that they were stopping for the night and offered to pay for the privilege. Citius stated that he was a deputy sheriff and he ordered Mr. and Mrs. Polk to stand up. Citius had in one hand a pistol and in the other a flash light, both of which he pointed at Mr. and Mrs. Polk. Upon the statement of appellant that he was a deputy sheriff, Polk placed his own pistol upon his cot and appellant seized it, and pointed it at the Polks. Citius then ordered them to hold up their hands. They did so, and appellant directed Edwards to search them. Edwards did this. In the meantime appellant saw the rings on Mrs. Polk's fingers and he ordered her to remove the rings, with threats to shoot her if she refused. Mrs. Polk took off her rings and gave them to appellant. Polk valued his pistol at $ 35 and Mrs. Polk testified that the rings were worth $ 393. Appellant and Edwards fled after the robbery and the Polks entered their automobile and drove several miles to a point on the highway where they met a group of county officers to whom they reported that they had been held up.

The evidence further showed that Citius had been keeping company with a young woman, Irene Eastwood, who resided in Caruthersville. She testified that on the evening of the robbery Citius ate supper with her, and that about eight o'clock she and Citius entered his automobile and went riding, the woman driving. They picked up Edwards and proceeded along Highway 61. The young woman gathered from the talk of the men that they planned to "stick up" somebody. Thereupon she turned the car over to Citius to drive. While the party was passing the point...