State v. Montgomery

• Decision Date: 01 February 1904
• Citation: 181 Mo. 19,79 S.W. 693
• Parties: STATE v. MONTGOMERY.
• Court: Missouri Supreme Court

79 S.W. 693

181 Mo. 19

STATE v. MONTGOMERY.

Supreme Court of Missouri, Division No. 2.

February 1, 1904.

ROBBERY — OWNERSHIP OF PROPERTY — POSSESSION BY CLERK—FAILURE TO VERIFY INFORMATION—WAIVER.

1. Under Rev. St. 1899, § 1893, declaring that every person convicted of feloniously taking the property of another from his person or in his presence, etc., shall be guilty of robbery, a clerk having possession of his employer's money has a sufficient ownership thereof to support an allegation of ownership in the clerk in an indictment for robbery.

2. The objection that the information was not verified is waived if not taken before appeal.

Appeal from Criminal Court, Jackson County; Jno. W. Wofford, Judge.

O. Montgomery, alias Frank Gale, was convicted of robbery, and appeals. Affirmed.

A. C. Durham and L. E. Durham, for appellant. E. C. Crow and Bruce Barnett, for the State.

GANTT, P. J.

The defendant was convicted in the criminal court of Jackson county of robbery in the first degree, and sentenced to 10 years' imprisonment in the penitentiary.

The information is in two counts, as follows:

"Now comes Rowland Hughes, prosecuting attorney for the state of Missouri, in and for the body of the county of Jackson, and, upon his official oath, informs the court that O. Montgomery, alias Frank Gale, whose Christian name in full is unknown to said prosecuting attorney, late of the county of Jackson aforesaid, on the 4th day of January, 1903, at the county of Jackson, state of Missouri, in and upon one William I. Mills unlawfully and feloniously did make an assault, and twenty-two dollars, in lawful money of the United States, of the value of twenty-two dollars, the money and property of said William I Mills, and in the presence of the said William I. Mills, and against the will of said William I. Mills, then and there, by putting said William I. Mills in fear of immediate injury to his person, feloniously did rob, steal, take, and carry away, against the said peace and dignity of the state.

"And the prosecuting attorney aforesaid, upon his oath aforesaid, further informs the court that O. Montgomery, alias Frank Gale, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, at the county of Jackson and state of Missouri, on the 4th day of January, 1903, in and upon one William I. Mills unlawfully and feloniously did make an assault, and twenty-two dollars, in lawful money of the United States, of the value of twenty-two dollars, the money of T. J. Radford, which said money was then and there in the care, custody, and control of the said William I. Mills as the clerk of the said T. J. Radford, and in the presence of the said William I. Mills, then and there being, and against the will of the said William I. Mills, then and there, by putting the said William I Mills in fear of immediate injury to his person, feloniously did rob, steal, take, and carry away, against the peace and dignity of the state."

At the trial the state was required to elect, and the second count was dismissed.

The facts in evidence were these. On the 4th day of January, 1903, about 10:15 p. m., the defendant entered the drug store of Mr. T. J. Radford, located at the corner of Ninth and Locust streets, in Kansas City, Missouri. Mr. Radford was at that time at his home, in the suburbs of the city, and William I. Mills, his clerk, was in charge of the store. The defendant walked in, pointed a revolver at Mills, and demanded him to throw up his hands. The clerk complied with the demand, while defendant took about $22 in money from the cash register of the store. Putting the money in his pocket, defendant backed out of the store and escaped. Two days afterwards he was arrested by a detective, and identified by Mills. The evidence of the state further showed that the money alleged to have been taken was not the property of said Mills, as charged in the information, but was the property of his employer, Mr. Radford; that Mills was a clerk in the store, and had charge of the store and the money in the register, with authority to put the money received on sales therein, and to take cash therefrom to make change, and had no other interest in the money taken or in the store, and was not, under the terms of his employment, required to make good the loss of this money. Mills testified: "Q. Did Mr. Radford hold you responsible for that money after it was gone? A. No, sir; he didn't. Q. You were merely clerking there? A. Yes, sir. Q. You have no interest in that store? A. None whatever. Q. The money belonged to Mr. Radford? A. Yes, sir." The defendant introduced no evidence, but bottoms his appeal upon the fact of the variance between the allegation in the information that the money taken was the property of Mills, and the proof that it belonged, not to Mills, but to his employer, Radford.

The court refused to give the following instruction offered by the defendant, to which action the defendant excepted at the time: "The court instructs the jury that if they find from the evidence in this case that the money alleged to have been stolen was not the property of the said William I. Mills, but the property of T. J. Radford, and that he had no specific property therein, then they will acquit the defendant of the charge of robbery as alleged in said information."

As the law of this state had been adjudged prior to March 24, 1903 (Laws Mo. 1903, p. 162), to constitute the crime of robbery the taking must be laid in the indictment, and proven on the trial, to be from the person or in the presence of the owner—either the true owner, or one having such a special property therein, as a bailee, pawnee, carrier, or the like, as would enable him or her to maintain an action therefor if taken out of his or her custody. State v. Lawler, 130 Mo. 366, 32 S. W. 979, 51 Am. St. Rep. 575; State v. Morledge, 164 Mo. 522, 65 S. W. 226. And it was expressly ruled in the case last cited that a clerk, such as Mills was in this case, had no such special property in the goods as would authorize the ownership of the property to be laid in him. Since the enactment of the statute of March 24, 1903, the offense can be charged for the taking from the wife, servant, clerk, or agent.

We are again confronted with the question whether the evidence in this case is sufficient to sustain the charge of robbery. The defendant relies upon State v. Morledge, 164 Mo. 522, 65 S. W. 226, and, if that case is to be followed, he is entitled to a reversal. The decision in that case was predicated upon State v. Lawler, 130 Mo. 366, 32 S. W. 979, 51 Am. St. Rep. 575. There is, however, this distinction between the two cases: In State v. Lawler the indictment alleged an assault upon, and putting in fear of, Mrs. Sexaner, and the taking of the goods and money of George Sexaner, whereas in the Morledge Case the indictment charged the assault upon, and putting in fear of, John Resmussen, and the taking of the money of said John Resmussen. In an exhaustive decision by Judge Sherwood, in Lawler's Case, as to the essentials of a good indictment for robbery, the conclusion was reached that the money or goods must be laid in the general or special owner, and it was said it was sufficient that they be laid in a bailee, pawnee, carrier, or the like. State v. Moore, 101 Mo. 316, 14 S. W. 182. "But in such category a wife or servant cannot be included." That the great weight of authority, at common law, sustains Judge Sherwood's opinion as to the possession of a wife at common law, we think there can be no doubt, because the possession of the wife was prima facie the possession of the husband, and by the common law she could have neither real nor personal property in possession. Hughes v. Com., 17 Grat. 565, 94 Am. Dec. 498; Wade's Case, 17 Pick. 395; Com. v. Williams, 7 Gray, 337; Com. v. Cullins, 1 Mass. 116. But this doctrine has been so modified by statute that it can no longer be said to obtain in most of our states. The question presented by this record and in the Morledge Case is whether a clerk left in charge of, and intrusted with the care of, his employer's cash, with authority to sell his goods and make change out of the drawer, is not a person in whom the ownership of such money may be laid, as against a robber. Certainly, if he is over 16 years of age, he may be convicted of embezzlement of such money, if he fraudulently...