State v. Massey
| Decision Date | 03 June 1918 |
| Citation | 204 S.W. 541,274 Mo. 578 |
| Parties | THE STATE v. JOE MASSEY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court. -- Hon. Sterling H. McCarty Judge.
Affirmed.
B. A McKay and Ward & Reeves for appellant.
(1) The information in this case does not charge that the defendant "made an assault" or "did make an assault" and the information is insufficient. Sec. 4530 R. S. 1909; State v. Calbert, 209 Mo. 280. (2) John Cidius was the main star witness for the State, not jointly indicted with the defendant, but under an indictment for the same offense, and the court, over defendant's objections, permitted the introduction of the information against Citius, the State's own witness, and this was prejudicial error to the defendant. State v. Reavis, 71 Mo. 419. (3) Over the defendant's objections and exceptions the State introduced the record showing the trial, the swearing of the jury, the names of the jurors, the verdict of the jury and conviction of one Willie Sharp of the same offense for which the defendant was being tried, and this was shown as a part of the State's case in chief, and Willie Sharp was not a witness for the State, had not taken the stand, but it had been shown in evidence that he was in company with the defendant and John Citius the night of the robbery. "Even where two persons are jointly indicted for a felony, the conviction of the principal is not a condition precedent to the conviction of the accessory, or vice versa." State v. Anderson, 89 Mo. 312; State v. Phillip & Ross, 24 Mo. 483; State v. Reavis, 71 Mo. 419. "The judgment of conviction of one jointly indicted or of an accomplice or principal is incompetent against the defendant at bar." People v. Bearss, 10 Cal. 68; State v. Crank, 23 Am. Dec. 117; Kelly's Criminal Law (3d Ed.), sec 47, pp. 46-47. (4) Instruction 1 does not require the assault to be felonious or the taking of the property to be feloniously done; leaves it to the jury to find that the defendant took the gold watch and $ 10 in money, when the State proved that the watch was taken by Citius, and there was no testimony that the defendant took any of the property. Instruction 2 is erroneous, for the following reasons: (a) Because it refers to the information for the jury to find what property was taken, if any. State v. Wilcox, 179 S.W. 479, l. c. 481 (Mo. Sup.). The information does not require the assault to have been felonious. The court erred in refusing to give a cautionary instruction on testimony of an accomplice. (5) It is reversible error to refuse to instruct the jury that the testimony of those aiding and abetting and encouraging in a crime should be received with great caution by the jury, and they should not convict on such testimony unless satisfied of its truth. State v. Jones, 64 Mo. 391; State v. Woolard, 111 Mo. 256; State v. Harkens, 100 Mo. 672; State v. Chyo Cheagk, 92 Mo. 413.
Frank W. McAllister Attorney-General, and Thos. J. Cole, of counsel, for respondent.
(1) The information does not contain an allegation that the property was taken from E. P. Adkins "against his will," but it is charged that the property was taken from Adkins, "by force and violence to the person of said E. P. Adkins," and therefore the omission of the statutory phrase "against his will," does not render the information insufficient. People v. Riley, 75 Cal. 98; State v. LaChall, 28 Utah 83; State v. Patterson, 42 La. Ann. 934; State v. Presley, 91 Miss. 381; Acken v. Commonwealth, 94 Pa. 284; State v. Kegan, 62 Iowa 106; State v. Wilson, 136 La. 345; Chauncey v. State 124 S.W. 426; Anderson v. State, 28 Ind. 22; Terry v. State, 13 Ind. 70; State v. Parr, 103 P. 435 (Oregon) . (2) The information is not insufficient because it states that defendant "make an assault" instead of "made an assault." Sec. 5115, R. S. 1909; State v Morehead, 195 S.W. (Mo.), 1043; State v. Griffin, 249 Mo. 627; State v. Duvenick, 237 Mo. 194. (3) Admission in chief of evidence which is proper in rebuttal is a mere irregularity and is not reversible error. Hays v. State, 40 Md. 649; Brister v. State, 26 Ala. 127; Lawson v. State, 20 Ala. 78; Nuckolls v. College of Physicians and Surgeons, 94 P. 81; Bliss v. Waterbury, 131 N.W. 732; Page and Jones v. Barry, 73 So. 22; Brownell v. Moorehead, 165 P. 410. (4) The trial court did not instruct the jury as to the value of accomplice testimony, although requested to do so by defendant's counsel. The failure to give such instruction is not reversible error. Diggs v. United States, 220 F. 552; Solander v. People, 2 Colo. 66; Cheatham v. State, 67 Miss. 344; State v. Haynie, 19 N. C. (2 Dev. & Bat.) 390; Commonwealth v. Clune, 162 Mass. 214; Johnson v. State, 2 Ind. 655; Commonwealth v. Wilson, 152 Mass. 14; State v. Porter, 42 Vt. 505.
On the 26th day of March, 1917, the prosecuting attorney of Pemiscot County filed in the circuit court of that county his duly verified information charging defendant herein with the crime of robbery in the first degree. Upon his trial defendant was found guilty and his punishment assessed at imprisonment in the Penitentiary for a term of five years. From the resulting sentence defendant has appealed.
The facts shown in evidence tend to prove that defendant, together with John Citius, Willie Sharp and an unknown man decoyed one E. P. Adkins (who had been drinking and was at the time under the influence of liquor, if not actually drunk) out of a saloon in the town of Caruthersville, and robbed him of a watch, watch-chain, and some money, aggregating in value, as it averred in the information, the sum of $ 34.
Defendant was not jointly charged with Citius and Sharp in this robbery, but was separately indicted. Citius and Sharp, as the record discloses, were jointly indicted for the robbery of Adkins. Sharp had, it seems, theretofore been tried and convicted, and Citius had pleaded guilty, and upon the trial of defendant Citius testified for the State.
There was much other evidence, both direct and circumstantial, in the case, outside of that given by the accomplice Citius, but for ease of statement we shall refer in detail to his story of the circumstances of the robbery, as well as to his statement of the facts which led up thereto. Defendant, together with Sharp and Citius, and numerous others, were, as stated, in a saloon with Adkins. The latter was drunk. He had invited the usual aggregation of bystanders to join him in a drink, in paying for which he had exhibited some money. Thereupon defendant, according to the story of his accomplice Citius, said to the latter and to Sharp, that he, defendant, would entice Adkins out of the saloon, and take him down the street, and that Citius and Sharp could follow after them, catch up with them and the three of them would get Adkins's money. Upon the pretense of showing Adkins a rooming house, which defendant averred he owned, or was running, he took Adkins by the arm and led him out of the saloon. Almost instantly thereafter Citius and Sharp followed them out. After going with Adkins, holding the latter by the arm, for a distance of some two blocks or more, defendant released Adkins, and almost immediately thereafter Adkins was struck, knocked down, and for a moment seemingly rendered unconscious. While he was down, defendant, assisted by Citius, took from his person the property set out in the information.
Shortly afterward Adkins returned to the saloon and made complaint that he had been robbed. Defendant also came back into this saloon and was accused by Adkins of having assisted in the robbery. Upon the trial of the case Adkins testified that while he was down someone was heard coming, and defendant suggested that the approaching party be held up with a pistol, and that immediately after his property was taken defendant ran off.
Defendant testifying for himself denied any participation whatever in this robbery, but swore that Sharp and Citius committed the robbery without any assistance from him or from anyone else. He swore that he thought Sharp struck Adkins, and that Sharp then drew a gun and ordered him (defendant) to "stay out of it." One witness for defendant testified that he was with defendant on the night of the robbery and that defendant had no conversation whatever with either Citius or Sharp. The latter, however, testifying for defendant, admits having a conversation with the defendant a short time before the robbery, but denies that this conversation had anything to do with the robbery. The reputation of the defendant, as well as that of many of the witnesses, was shown to be bad.
Such further facts as tend to make clear the points we find ourselves compelled to discuss will be set forth in the opinion in connection with that discussion.
I. Defendant complains that the information upon which he was tried and convicted is bad, for that it does not charge that an assault was made upon the prosecuting witness. Omitting merely formal parts, which are conventional, this information reads thus:
"Now comes C. E. Bragg, Prosecuting Attorney within and for the County of Pemiscot, who in this behalf prosecutes for and in the name of the State of Missouri, and upon his official oath informs the court that on or about the day of March, 1917, at and within the county and State aforesaid, one Joe Massey, in and upon E. P. Adkins, unlawfully and feloniously make an assault and one gold watch of the value of twenty dollars, one gold watch-chain of the value of three dollars one pocket knife of the value of one dollar and ten dollars of good and lawful money of the United States, and of the aggregate value, thirty-four dollars, the property of E. P. Adkins, then and there from the person of and by force and violence to the said...
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