State v. McLain

• Decision Date: 18 December 1900
• Citation: 159 Mo. 340,60 S.W. 736
• Parties: STATE v. McLAIN.
• Court: Missouri Supreme Court

60 S.W. 736

159 Mo. 340

STATE v. McLAIN.

Supreme Court of Missouri, Division No. 2.

December 18, 1900.

CRIMINAL LAW — JURY LIST — WAIVER OF SERVICE — ROBBERY — EVIDENCE — CONTRADICTING STATE'S WITNESS — HARMLESS ERROR — CREDIBILITY OF WITNESS — INSTRUCTIONS.

1. The right of the accused to have a list of the jurors furnished him 12 hours before trial, as provided by Laws 1895, p. 165, amending Rev. St. 1889, § 4204, is a personal privilege, which is waived by not demanding it and proceeding to trial without it.

2. The admission of immaterial evidence offered by the state for the purpose of contradicting statements made by the prosecuting witness on cross-examination is harmless.

3. Where an indictment has been quashed, and another preferred, the first indictment is properly excluded, when offered for the purpose of showing on whose evidence it was found.

4. It is not error to exclude evidence offered by the defense affecting the credibility of a state's witness, when the testimony of such witness is immaterial.

5. Where robbery is charged to have been done both by force and putting in fear, and the putting in fear alone is proved, it is proper to give instructions ignoring the element of force, in defining the offense.

6. An instruction defining the offense of robbery which fails to declare on the intent with which the property was taken is erroneous, and the use of the words, "willfully, feloniously, and violently" in describing the taking will not cure the error.

7. An instruction relative to the admissibility and weight of the testimony of an accomplice, introduced by the state on the trial for robbery, which fails to explain what is meant by the term "material to the issues," and fails to define the meaning of the word "corroborated," is erroneous.

Appeal from circuit court, Cape Girardeau county; Henry C. Riley, Judge.

George L. McLain was convicted of robbery, and appeals. Reversed.

Wilson Cramer, for appellant. The Attorney General and Sam B. Jeffries, for the State.

BURGESS, J.

At the August term, 1899, of the circuit court of Cape Girardeau county the defendant was convicted of robbery in the first degree, and his punishment fixed at five years' imprisonment in the penitentiary, under an indictment charging him and one other person, to the grand jurors unknown, with feloniously assaulting one August Vornkohl, and by putting him in fear of some immediate injury to his person, and by force and violence to his person, robbing him of the sum of $33.50, lawful money of the United States. After unsuccessful motions for new trial and in arrest, defendant appeals.

The facts are about as follows: Defendant and Vornkohl were neighbors, and lived about eight miles north of the town of Cape Girardeau. On the 3d day of September, 1898, they were both in town, Vornkohl having gone in defendant's wagon. While they were there defendant paid Vornkohl $30, that he owed him for work and a wagon. About dusk they started home. Before that time, however, Vornkohl had suggested to defendant several times that they start home, but he was not ready. After they had gone several miles on the road towards home a man stepped out from behind a large tree, halted them, and demanded their money. Vornkohl testified with respect to what occurred as follows: "McLain, as quick as he said that, run his hand in his pocket and gave him his money. I set there a good little bit. I though maybe he would go away. I told him I didn't have any money. He says: `Give up your money.' I kept telling him I didn't have any money. Finally McLain says: `You had better give up your money. He will shoot you.' And so I gave him thirty-three dollars and fifty-five cents, and McLain asked how much I gave him. I told him about forty or fifty dollars. As quick as I said that the robber jumped out of the wagon, — out of the hind end, — and went down the road. After he got out, McLain asked if I had a knife. I told him yes, I had a piece of one, — an old barlow. He said: `Let me have that. I will get the money back.' I gave him the knife, and he went out and took the same road the robber did, as far as I could see him. He was gone about ten or fifteen minutes. Then, after he came back, McLain asked me if he got all my money. I told him no, I had forty dollars yet. As quick as I said that the robber stepped back in the wagon again the second time. The second time he came back, McLain jumped out of the wagon, and I jumped out and took out running. He stayed there. I run as fast as I could towards home. I got one hundred yards or more before I heard the wagon. Then I heard the wagon coming up the hill as fast as it could, from the way it rattled. After it caught up with me I got in the wagon and went on a piece of the way home. He says: `The best thing to do is to keep still about it, — not say anything about it. If the fellow that done the robbing found out we didn't care, he would finally leak it out.'" T. M. Wilson was sworn as a witness on the part of the state, and testified, in substance: That in the forenoon of September 3, 1898, the defendant came to his house, in Cape Girardeau, and proposed to him the robbery of Vornkohl. That he at first refused, but finally consented. That several meetings were had between them during the day; the last one being in the back room of a saloon called the "Palace," where the plans for the robbery were arranged. By the arrangement, defendant was to keep Vornkohl in town until rather late in the evening, in order to give Wilson time to reach a place on the road about four and one-half miles north of town. McLain was to take Vornkohl home in his wagon, and on the way they would pass the place where Wilson was to be in waiting. When the defendant and Vornkohl should reach this place, Wilson was to spring into the wagon and demand money of both Vornkohl and defendant. The place agreed upon was a dark spot surrounded by trees, and when defendant and Vornkohl reached the place he commanded them to halt, and defendant stopped the horses. That he (Wilson) then sprang into the wagon, and, holding his pocketknife in such a way as to make it appear like a revolver, demanded their money of them, which defendant at once delivered to him, but that Vornkohl replied that he had no money, and refused to give it up until told by defendant that he had better give up his money or the robber would shoot him, when Vornkohl surrendered his money; and he jumped out of the wagon and disappeared, and went back to a bridge, where defendant come to him and asked him how much money he got, and witness told him he did not know. That "defendant says, `Well, let's divide,' and I told him, `All right.' He then said, `He has got some more money. Come back and get the rest.'" That he told him to go to hell with the rest; that he did not want any more. That defendant stayed there about three minutes, and as soon as he got the money went back to the wagon, and when he and Vornkohl were about to proceed on their way he (witness) again appeared, when Vornkohl ran away in the darkness down the road, the defendant soon following in the wagon. It was shown that defendant repeatedly said that the robber was a negro. The defendant introduced witnesses who swore that they had heard Vornkohl say that the robber was a negro, and that it could not have been McLain, for he was not out of his sight during the robbery. Vornkohl, on the witness stand, denied that he ever made such statements. The testimony of Thomas Wilson to the effect that the defendant came to his house during the forenoon, and met him again about 2 o'clock in the afternoon, is contradicted by McLain's wife and her nephew Vernie Ramsey, a boy of 14 years, who testified that he did not leave his home, eight miles north of town, until after 1 o'clock; and Ramsey swore that it was after 4 o'clock when he and defendant reached Cape Girardeau. August Kramer testified that he saw the defendant coming into town about 4 o'clock in the afternoon, but Henry Kramer, his brother, testified that he saw McLain in town at about 2 o'clock in the afternoon. Wilson was corroborated as to these meetings by William Sullivan, who testified to seeing defendant at Wilson's house in the forenoon, and again early in the afternoon; and by Summers, the saloon keeper, who swore that Wilson and the defendant held a meeting in the back room of his saloon on that afternoon. Members of Wilson's household testified that they had seen the defendant at their house on several occasions. The defendant explained this by saying that Wilson's wife owed him some money for some hay, and that he had gone there several times to collect the debt, but each time without success. Wilson swore that it was arranged between him and the defendant that the latter should pay Vornkohl some money that he owed him, before leaving town, so that such money, with the rest which Vornkohl had, might come into their hands by means of the robbery. The amount of this debt from McLain to Vornkohl was $45, and the defendant received from the mill for his wheat a check for $36, and went from place to place around the town trying to get the check cashed, — it being after banking hours, — so that he could turn over the money to Vornkohl. The defendant, in his testimony, denied complicity in the robbery, and said that he never knew who the robber was until the prosecuting attorney, in his opening statement, said that it was Wilson. He said he left his house in company with Vernie Ramsey, his wife's nephew, after 1 o'clock in the afternoon, and reached town with his wheat between 4 and 5. He denied having had any meetings with Wilson during the day, and said that he and Vornkohl were robbed at the place and in the manner before described, but denied that he had conspired with Wilson for the same to be done, or that he knew that it was going to happen. Denied that he stopped the horse when the robber commanded them to halt, but said that the robber sprang...