State v. Massey

• Court: Missouri Supreme Court
• Writing for the Court: Paris
• Citation: State v. Massey, 274 Mo. 578, 204 S.W. 541 (Mo. 1918)
• Decision Date: 03 June 1918
• Docket Number: No. 20686.,20686.
• Parties: STATE v. MASSEY.

204 S.W. 541

274 Mo. 578

STATE v. MASSEY.

No. 20686.

Supreme Court of Missouri, Division No. 2.

June 3, 1918.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Joe Massey was convicted of robbery in the first degree, and he appeals. Affirmed.

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, watchchain, and some money, aggregating in value, as it is 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' 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 indictment. Shortly afterward Adkins returned to the saloon and made complaint that lie 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 some one 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 any one 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 hi the opinion in connection with that discussion.

B. A. McKay and Ward & Reeves, all of Caruthersville, for appellant. Frank W. McAllister, of Jefferson City (Thos. J. Cole, of Joplin, of counsel), for the State.

PARIS, J. (after stating the facts as above).

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 $20, one gold watch chain of the value of $3, one pocket knife of the value of the $1, and $10 of good and lawful money of the United States, and of the aggregate value $34, the property of E. P. Adkins, then and there from the person of and by force and violence to the said Adkins, feloniously did rob, steal, take, and carry away, contrary to the form of the state in such cases make and provided, and against the peace and dignity of the state of Missouri."

It is plain that the pleader by a mere clerical misprision, either omitted the word "did" before the phrase "make an assault," or he wrote "make" where he intended to write "made." In either event the error is one which the reader of the indictment readily detects and is readily and instantly able to supply. Such condition being obvious, we do not think we ought to condemn the information as being fatally bad. We think it is saved by the statute of jeofails, which forbids us to hold invalid any defective indictment or information wherein the defect extant "does not tend to the prejudice of the substantial rights of the defendant upon the merits." Section 5115, R. S. 1909; State v. Duvenick, 237 Mo. loc. cit. 104, 140 S. W. 897; State v. West, 202 Mo. 128, 100 S. W. 478; State v. Griffin, 249 Mo. loc. cit. 627, 155 S. W. 432; State v. Morehead, 271 Mo. 84, 195 S. W. 1043. It follows that this specific contention of fatal badness must be overruled. Obviously the patent clerical errors in the contra formam statuti clause of the information are likewise cured by the statute of jeofails, supra.

This information is, however, subject to another serious criticism, not called to our attention in the brief of defendant's learned counsel, but one which, being obvious, we think we should notice, and one which, if the defect prove to be fatal, it is our statutory duty to notice. This criticism is bottomed upon the novel departure in criminal pleading, which led the learned prosecuting attorney to omit to charge in the set phrase and language of both the statute and the common law that the taking of the property of the prosecuting witness from the person of the latter was "against his will." The common law required such an allegation to be made in the indictment, and our own statute, which is declaratory of the common law and which defines "robbery" in the terms of the common law (State v. Broderick, 59 Mo. 318), likewise contains this language. Any information attempting to charge the crime of robbery which fails substantially to allege that the taking of the property was against the will of the person robbed would be palpably bad. For obviously no person can be robbed when he consents to or acquiesces in the taking of his property. There must be apt wards in the information which negative the idea of consent or acquiescence. Unless the information before us contain such, it is bad, and cannot be upheld. For the pertinent language of our statute is:

"Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person, * * * shall be adjudged guilty of robbery in the front degree," etc. Section 4530, R. S. 1909.

The information in the case charges, it will be noted, that the property was taken from the person of E. P. Adkins "by force and violence to the said Adkins." The statute does not contain the word "force," which we find used in the information, but does contain the word "violence." The noun "force" means "power exerted against will or consent." Webster's Dictionary. So, if the property was taken from the prosecuting witness by force, of necessity it was taken by the exercise of power, operating against the will of him who was robbed. It could not have been taken by force without being taken against the will of the prosecuting witness. While it is held, both at common law and under statutes defining "robbery," with a uniformity which is almost universal, that the indictment must charge that the taking of the property is "against the will" of the person robbed, the cases hold and the text-books likewise lay down the rule that it is not an absolute prerequisite that the set and fixed phrase of the statute or of the common law be used to negative the fact of consent; that any other word or words which clearly allege that the caption of the property taken was had without the consent of the person robbed is sufficient. People v. Riley, 75 Cal. 98, 16 Pac. 544; State v. La Chall, 28 Utah, 80, 77 Pac. 3; State v. Patterson, 42 La. Ann. 934, 8 South. 529; State v. Presley, 91 Miss. 377, 44 South. 827; Acker v. Com., 94 Pa. 284; State v. Kegan, 62 Iowa, 106, 17 N. W. 179; State v. Wilson, 136 La. 345, 67 South. 26; Chancey v. State, 58 Tex. Cr. R. 54, 124 S. W. 426;...