State v. Graves

• Decision Date: 31 January 1905
• Citation: 84 S.W. 904,185 Mo. 713
• Parties: THE STATE v. GRAVES, Appellant
• Court: Missouri Supreme Court

84 S.W. 904

185 Mo. 713

THE STATE v. GRAVES, Appellant

Supreme Court of Missouri, Second Division

January 31, 1905

Appeal from Greene Criminal Court. -- Hon. J. J. Gideon, Judge.

Reversed and remanded.

Delaney & Delaney for appellant.

(1) Instruction 4 is clearly misleading. Under this instruction the jury could clearly infer, in fact it is the only inference justifiable, that a struggle for possession of the money after the asportation by defendant was complete, is sufficient evidence of violence to constitute robbery. This is not the law. State v. Sommers, 12 Mo.App. 374; State v. Willis, 16 Mo.App. 553; State v Clark, 12 Mo.App. 593; State v. Cunningham, 13 Mo.App. 576. (2) Instruction 1 does not properly declare the law. The intent with which defendant took the money is material and such intent is not submitted to the jury in instruction 1. State v. O'Connor, 105 Mo. 121; State v. McLain, 159 Mo. 352; State v Scott, 109 Mo. 266. Nor is it cured by the instruction 3, as that is a mere definition of the term robbery and does not submit the question of intent.

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

The instructions as to what should be found by the jury to constitute the crime charged were sufficient. State v Manley, 107 Mo. 364; State v. Nolan, 111 Mo. 473.

OPINION

FOX, J.

The defendant is charged with the crime of robbery. The information was filed in the criminal court of Greene county at the July term, 1903, by the prosecuting attorney of said county. On the twenty-eighth day of July, the defendant was arraigned and entered a plea of not guilty. He was afterwards tried, found guilty by the jury, and his punishment assessed at six years' imprisonment in the penitentiary. From judgment upon this verdict, he appeals.

The testimony for the State substantially shows that the prosecuting witness, William Rogers, had for some years been a resident of the city of St. Louis. In the winter of 1903, he was out on the Frisco railroad in western Missouri and eastern Kansas. He had been working at the blacksmith trade at Hutchinson, Kansas, for some railroad contractors. Shortly before the robbery, he received a check from his employer for one hundred and fourteen dollars and fifty cents. This he had cashed at Red Fork and started at once for Springfield, Missouri. He arrived at Springfield in the morning of about the ninth of May, 1903. On arriving at Springfield, he got his breakfast, bought some clothes and went to the barber's shop. From there he went to a saloon and put in the balance of the day going from one saloon to another in Springfield. Sometime during the day, he ran across the defendant and they went together to a saloon kept by a man by the name of Harrington, the prosecuting witness spending his money freely on defendant and all others who chose to drink with him. They went from Harrington's saloon to Scharff's saloon about six o'clock in the evening. While there the defendant and a companion induced the prosecuting witness to go to the back part of the room, where defendant took hold of him, pushed him up against the wall, at the same time putting his hand in his pocket and taking money to the amount of between fifty and sixty dollars, the balance having been spent that day. After the defendant got hold of the money, he gave the prosecuting witness a shove and ran out of the door down the street and passed out of sight up an alley. He was afterwards arrested and complaint was filed, with the result heretofore stated.

Defendant admits that he was in the saloon with the prosecuting witness, but denies that he took the money. He admits that the prosecuting witness accused him of taking the money, but stated that he told the witness at the time that he did not have his money and that he could search him or have anybody else search him if he so desired.

Defendant's version of this transaction is substantially as follows, he says:

"I went to town in a wagon with my mother, arriving at ten o'clock. I met Rogers in the barber shop, and with him and the barbers went to saloon. Then I went to my aunt's and stayed several hours, and in the afternoon I met him again in Harrington's saloon. Then we went to Scharff's saloon. We did not drink in there. The first I knew he said, 'Give me that money.' I said, 'I ain't got your money; turn me loose;' and he grabbed hold of me and said, 'Here, give me the money,' and I said 'You can search me or anybody else in the room can search me.' I jerked loose and ran because we were both drunk and I thought we would be arrested. I had not taken any of his money and did not try to take any of his money. I went home and that night a neighbor boy called for me and we went fishing, and I was arrested on the creek."

There were other witnesses introduced whose testimony shows that the defendant and prosecuting witness were intoxicated, and some of them saw the defendant and prosecuting witness in the doorway of the saloon scuffling, Rogers remarking, "He has got my money," the defendant replying, "I have not got your money, you can search me." Other testimony was offered, indicating that the scuffling at the saloon was after the prosecuting witness claimed that the defendant had robbed him, and that the scuffle ensued by reason of Rogers insisting that defendant should not go home until he gave him his money. There was testimony by a policeman as to the bad reputation of defendant for honesty, truth and veracity. This is a sufficient indication of the nature and character of the testimony to enable us to determine the legal propositions presented by the record. At the close of the evidence the court instructed the jury, and it is only necessary to reproduce here those of which appellant complains. They embrace Nos. 1, 3 and 4, which were as follows:

"1. Gentlemen of the jury, you are instructed that if you believe and find from the evidence that the defendant, Joe Graves, on the ninth day of May, A. D. 1903, or at any time within three years next before the filing of the information in this case to-wit, the first day of July, A. D. 1903, at the county of Greene and State of Missouri, did then and there feloniously make an assault in and upon the body of William Rogers and seventy-five dollars in money, or any other amount of money, of the personal property of the said William Rogers, from the person and in the presence of the said William Rogers and against the will of the said William Rogers then and there by force and violence to the person of the said William Rogers feloniously did rob, steal, take and carry away, you will find the defendant guilty as charged in the information and assess his punishment at imprisonment in the penitentiary for any term of years that you may deem proper, but not less than five years.

"3. The term 'robbery,' as mentioned in these instructions, means the felonious taking of the money or property of another from his person in his presence and against his will, either by violence to his person or by putting him in fear of some immediate injury to his person with the intent to permanently deprive the owner of such money or property and without any honest claim...