State v. Flynn

• Decision Date: 26 May 1914
• Docket Number: No. 18066.,18066.
• Citation: 258 Mo. 211,167 S.W. 516
• Parties: STATE v. FLYNN.
• Court: Missouri Supreme Court

167 S.W. 516

258 Mo. 211

STATE v. FLYNN.

No. 18066.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

1. INDICTMENT AND INFORMATION (§ 137) — OBJECTIONS — DUPLICITY — MOTION TO QUASH.

A motion to quash an information on the ground of duplicity, urged before trial, is timely, and must be sustained if the objection is well taken.

2. INDICTMENT AND INFORMATION (§ 202) — DUPLICITY — VERDICT.

Duplicity in an information or an indictment is cured by verdict.

3. ROBBERY (§ 1) — OFFENSES — STATUTORY PROVISIONS.

Rev. St. 1909, § 4530, providing that one feloniously taking the property of another from his person or in his presence and against his will, by violence or by putting in fear of immediate injury, shall be guilty of robbery in the first degree, defines but one offense, which may be committed either by taking the property of another from his person or in his presence and against his will, either by violence or by putting in fear of some immediate injury.

4. CRIMINAL LAW (§ 364) — EVIDENCE — RES GESTÆ.

Where, on a trial for robbery, the proof showed that accused took from the person of prosecutor his pocketbook and money, as charged in the information, under circumstances constituting robbery, evidence that accused at the time wrote an order on a bank in his favor and compelled prosecutor to sign it by threatening to kill him unless he did so was admissible as a part of the res gestæ.

5. INDICTMENT AND INFORMATION (§ 125) — DUPLICITY — INCONSISTENT ALLEGATIONS.

An information charging robbery in the first degree, as defined by Rev. St. 1909, § 4530, is not duplicitous merely because it charges that the offense was perpetrated both by violence to the person of prosecutor and by putting him in fear, because the allegations are not inconsistent.

6. INDICTMENT AND INFORMATION (§ 72) — STATUTORY OFFENSES — DUPLICITY.

Where, by statute, a crime may be committed in several different methods, an information or indictment may charge in the conjunctive that the crime was committed by all of the methods, provided they are not inconsistent with or repugnant to each other.

7. CRIMINAL LAW (§ 1159) — VERDICT — REVIEW.

Where there is substantial evidence of the necessary elements of the crime charged, the question of guilt is for the jury, subject to the superintendence of the trial court, and the court on appeal will not pass on the weight of the evidence.

8. ROBBERY (§ 24) — EVIDENCE — SUFFICIENCY.

Evidence held to sustain a conviction of robbery.

9. CRIMINAL LAW (§ 829) — INSTRUCTIONS — REFUSAL OF INSTRUCTIONS COVERED BY THE CHARGE GIVEN.

It is not error to refuse requested instructions sufficiently covered by instructions given.

Appeal from Criminal Court, Greene County; Arch. A. Johnson, Judge.

T. W. Flynn was convicted of robbery in the first degree, and he appeals. Affirmed.

Defendant, convicted in the Criminal Court of Greene county of robbery in the first degree and having had assessed against him as punishment therefor imprisonment for a term of five years in the penitentiary, has, after the usual motions for a new trial and in arrest of judgment, appealed to this court.

Defendant is not represented here by counsel and no brief has been filed by him or for him. Below he was represented by counsel appointed in that behalf by the trial court.

Going through the record, as in duty bound, we note that the information was attacked both by a motion to quash, urged before the trial, and by a timely motion in arrest of judgment. In view of these attacks upon the information, and since thereby a debatable question is presented, we set out below this information, caption and verification omitted:

"Sam M. Wear, prosecuting attorney within and for the county of Greene, in the state of Missouri, under his oath of office informs the court that T. W. Flynn, late of the county and state aforesaid, on the _____ day of January, A. D. 1913, at the county of Greene and State of Missouri, did then and there in and upon one George Dooley unlawfully and feloniously make an assault, and $16 lawful money of the United States of the value of $16 and one order on the Citizens' Bank, a corporation duly organized and doing business under the laws of the state of Missouri, for $1,000 of the value of $1,000, said order being of the following tenor: `Jan. 11, 1913. To the Citizens' Bank, Springfield, Missouri: Pay to the order of T. W. Flynn one thousand dollars $1000. George Dooley' — all of the aggregate value of $1,016, the personal property of the said George Dooley, from the person and in the presence and against the will of the said George Dooley, by force and violence to the person of the said George Dooley, and by putting the said George Dooley in fear of some immediate injury to his person, feloniously did rob, steal, take, and carry away, contrary to the form of the statute in such cases made and provided, against the peace and dignity of the state.

                   "Sam W. Wear, Prosecuting Attorney."
                

It is strenuously urged in a number of assignments of error, both in the motion for a new trial (where among other places it is proper to urge it) and in the motion in arrest (where it is not proper to urge it), that the evidence adduced upon the trial was not sufficient to sustain the verdict. These contentions render it necessary to briefly set out the facts as the evidence discloses them.

As the information itself forecasts, the person alleged to have been robbed was one George Dooley. Dooley was at the time of the trial 66 years of age, engaged in farming in the country near Springfield, and also in the business of peddling butter, eggs, and feed in the latter city. Dooley had been acquainted with the defendant, Flynn, as well as with the wife of defendant, for about four years prior to the alleged robbery, and had at divers times during said period sold butter, milk, and eggs both to Flynn and to Flynn's wife during defendant's absence in Oklahoma. The alleged robbery occurred on the night of January 11, 1913, about the hour of 12 o'clock midnight, at the residence of defendant. Taking first the testimony of Dooley, the prosecuting witness, the facts as shown by the state were that on the morning of January 11th Dooley had come into Springfield with butter and milk and had gone to the house of defendant some time in the forenoon of that day and left some butter there, and had, it seems, made arrangements with defendant's wife to eat his dinner at the house of the latter, which he subsequently did at about 3 o'clock in the afternoon. At about the hour of 10 o'clock that night Dooley again went to the residence of defendant for the purpose, as he says, of obtaining a jug which he had left there. He found the wife of defendant at home, apparently alone, and made inquiry of her as to whether she was alone and as to whether any one was coming to stay with her that night. Mrs. Flynn stated that she was alone, but that she expected some one to come and stay with her. Dooley says that he was also told by Mrs. Flynn that defendant was absent in the "oil fields," which oil fields appear to have been those at Tulsa, Okl. Dooley further says that after talking to Mrs. Flynn for some little time she undressed in his presence and went to bed, but that while he took his shoes and overcoat off he did not himself go to bed, though he sat on the edge of the bed in which Mrs. Flynn lay, and while he was thus sitting on this bed, and at about the hour of 12 o'clock, the defendant suddenly pushed the door open, rushed into the room and assaulted him by striking him over the head with some sort of instrument; that this attack and these blows dazed him, and afterward, from being beaten in the face by defendant either with his fist or some weapon or other instrument, witness became partially unconscious, and while in this condition from these several attacks, his pocket-book, containing some $16 or $18, his watch and other papers and documents not here pertinent, were taken from him. After the conclusion of the assault the defendant wrote out and presented a paper for his signature, which paper the witness signed, after being threatened with death unless he did so. This is the order for the payment to defendant of $1,000, a copy of which is set out in the information.

Other testimony in the case shows that Dooley was very seriously injured by this assault; that he was found at the restaurant of one McGinnis distant some four blocks from defendant's house shortly after this assault, apparently in a dazed or semiconscious condition, and unable to give a very clear or coherent account of the manner in which he had been injured. The physician who was called to attend him at about the hour of 1 o'clock in the morning of January 12, testified that he found him incoherent and in a semiconscious condition. On the Monday following the assault upon Dooley, the defendant presented to the cashier of the Citizens' Bank the order set out in the information, and asked that it be cashed. The cashier refused to honor this paper in the form in which it was, but wrote out a check on the bank and asked defendant to procure Dooley's signature to such check. This does not appear from the record to have been done, nor does it appear that any money or other thing of value was ever obtained by defendant upon the order in question. When defendant was arrested the officer making the arrest found the watch of prosecuting witness in the possession of defendant.

On the part of defendant the latter testifying for himself, admitted that he had assaulted Dooley, but denied that he had taken his pocketbook or money and averred that the order which he attempted to cash, and which is set out in the information, was voluntarily given him by Dooley in order to prevent the arrest of Dooley for having been found by defendant in a compromising situation with defendant's wife. In more extended detail defendant's explanation was that he had come home from Oklahoma on a...