State v. Higgs

• Decision Date: 11 June 1930
• Docket Number: 29914
• Parties: The State v. Gene Higgs, Appellant
• Court: Missouri Supreme Court

29 S.W.2d 74

325 Mo. 704

The State v. Gene Higgs, Appellant

No. 29914

Supreme Court of Missouri

June 11, 1930

Appeal from Ray Circuit Court; Hon. Paul Van Osdol, Judge.

Affirmed.

Dan Johnson for appellant.

(1) The information does not follow the language of Sec. 3269, Revised Statutes 1919, defining kidnapping, as it nowhere charges the intent. (2) The demurrer of the appellant to all of the State's evidence should have been sustained, as the record as a whole negatives any proof of intention to take and carry out of the State at the time of the taking. State v. Altemus, 76 Kan. 718; People v Sweeney, 55 Mich. 586; 35 C. J. 910, sec. 27. (3) The State's principal instruction did not require the jury to find any intent to kidnap. (4) The alleged robbing of Milo Rone while in the motor car with appellant either in Missouri or Kansas, did not tend to prove or disprove any of the issues in the case of kidnapping, did not come within any of the exceptions wherein proof of another independent crime is allowed to be shown, and is highly prejudicial. State v Goatz and Martin, 34 Mo. 83; State v. Daubert, 42 Mo. 242; State v. Myers, 82 Mo. 558; State v Spray, 174 Mo. 569; State v. Hyde, 234 Mo. 200; State v. Boatright, 182 Mo. 51; State v. Cummings, 279 Mo. 192; State v. Saunders, 288 Mo. 654; State v. Patterson, 271 Mo. 99; State v. Cardle, 299 Mo. 373; State v. Aurentz, 263 S.W. 182; State v. Holland, 120 La. 429; People v. Petanza, 207 N.Y. 560; Farris v. People, 129 Ill. 521; People v. Harrison, 261 Ill. 517.

Stratton Shartel, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.

(1) The information follows the language of the statute, and is sufficient. Sec. 3269, R. S. 1919; Kelly's Crim. Law & Practice (3 Ed.) sec. 557. (2) Where an act forbidden by law is intentionally done, the intent to do the act is the criminal intent which imparts to it the character of the offense. State v. Silva, 130 Mo. 440. (3) Intent is not an element of the crime here charged; the act itself is forbidden, and since intent to commit the forbidden act is proven, so is likewise the criminal intent proven. (4) It is not error to show other offenses which are connected with the offense charged, and is a part of the res gestae. State v. Corrigan, 262 Mo. 195; State v. Anderson, 252 Mo. 83. In this case the crime charged was in the course of being consummated from the time Rone was put under duress until defendant abandoned him in Kansas. The evidence of the other crimes happened in this interval, and therefore was a part of the res gestae. (5) It being unnecessary to allege intent, Instruction 4 properly omitted reference to intent.

Davis, C. Henwood and Cooley, CC., concur.

OPINION

DAVIS

Defendant was convicted in the Circuit Court of Ray County, under Section 3269, Revised Statutes 1919, of the felony of kidnapping one Milo Rone. The verdict of the jury found defendant guilty, and assessed his punishment at seven years in the penitentiary. Defendant appealed from the judgment entered on the verdict.

The evidence submitted warrants the finding that, on May 23 1928, about three o'clock in the afternoon, defendant, accompanied by one Reidl, so drove an Overland coach that it collided with a Buick automobile driven by one of two sisters who occupied it. The cars were wrecked. Defendant and Reidl informed the girls of their intention to proceed to a farm house to telephone for help. They started thither, but passed the house and went towards the Missouri River. A crowd gathered at the scene of the wreck, and observing that they passed the farm house, they were followed to the river. Defendant and Reidl, observing some of the crowd following, fled and were pursued. After a command to halt, one of the pursuers fired two shots from a pistol into the air. Reidl stopped and was taken in charge. Defendant fled to a farm house, the pursuers following. On reaching the farm house, defendant appeared from behind it with a pistol in his hand and commanded them, "Stick 'em up." An automobile was standing there. On defendant attempting to start it, the carburetor became flooded and it failed to start. He then commanded that the driver start it, threatening to kill him if he failed.

At this time Milo Rone drove up in his Ford car, and defendant accosted Rone, threatening him with his pistol and commanding him to drive on. Thus compelled by defendant, Rone drove the car with defendant in it by circuitous routes westward through Liberty and over the Missouri River bridge at Leavenworth into the State of Kansas. On the way thither defendant took some bills from Rone. On arriving at a secluded place in the country in Kansas, defendant compelled Rone to disrobe, whereupon he took from him loose change and drove away in Rone's Ford car. It was later found in Kansas City. Missouri officers pursued Rone's car as it traveled from Ray County to Leavenworth, and at one place defendant exchanged shots with the officers.

Defendant offered no evidence in his behalf.

Section 3269, Revised Statutes 1919, reads:

"If any person shall, willfully and without lawful authority, forcibly seize, confine, inveigle, decoy or kidnap any person, with intent to cause such person to be sent or taken out of this State, or to be secretly confined within the same against his will, or shall forcibly carry or send such person out of this State against his will, he shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding ten years. Any person charged with such offense may be tried in any county into or through which the person so seized, inveigled, decoyed or kidnaped shall have been taken, carried or brought."

I. It is submitted that the information does not contain averments sufficient to constitute the offense denounced by the statute. Defendant, in presenting the question avers that the kidnapping of any person "with intent to cause such person to be sent or taken out of this State" is a necessary element of the offense of forcibly carrying or sending such person out of this State against his will, and must be averred. The statute, we think, provides two methods by which kidnapping may be effected. In the first method, that of wilfully and without lawful authority forcibly seizing, etc., any person, the specific intent to cause such person to be sent or taken out of this State, or to be secretly confined in the same against his will, is a necessary element. The offense is complete when the person is forcibly seized with the intent to take him out of this State or to secretly confine him in this State against his will. In this instance the intent must be averred. The second method of kidnapping a person under the statute is that of forcibly carrying or sending such person out of this State against his will. In this method the statute does not make intent an element of the offense, and it is not necessary to allege it in...