State v. Moore

Decision Date31 December 1930
Citation33 S.W.2d 905,326 Mo. 1199
PartiesThe State v. Allen Moore, Appellant
CourtMissouri Supreme Court

Appeal from Buchanan Circuit Court; Hon. Ira D. Beals Special Judge.


John E. Heffley, W. N. Linn and E. R. James for appellant.

(1) Appellant's sole defense was former jeopardy, which was raised in special plea in bar, and under the plea of not guilty, entered by the court. This defense (former jeopardy) can be made under a general plea of not guilty. Sec. 4007, R S. 1919; State v. Salter, 256 S.W. 1070. (2) A homicide committed in the commission of rape, robbery, etc is made murder in first degree by statute. Sec. 3230, R. S. 1919. (3) Only a portion of the common law rule as to former jeopardy was written into the Missouri Constitution, Sec. 23, Art. 2, and the common law where not changed by statute or modified by the Constitution is in force. Sec. 7048, R. S. 1919; State v. Linton, 283 Mo. 1, 222 S.W. 847; State v. Webster, 105 S.W. 705. (4) The common law as to former jeopardy is in force in this State unless the same has been changed or modified by the Constitution or by statutory enactment. Sec. 7048, R. S. 1919; State v. Linton, 222 S.W. 849. (5) The test in all cases is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, or vice-versa. Kelley's Criminal Law (4 Ed.) 198; State v. Headrick, 179 Mo. 300; State v. Akers, 213 S.W. 424. If the evidence on the trial of murder would have been sufficient to have convicted on the indictment for robbery, the robbery prosecution is barred by the conviction of murder and vice-versa. 8 R. C. L. 143, sec. 128; Wharton's Criminal Law (11 Ed.) 508, 528. If the State could have so drawn the indictment that on the trial it could have convicted either on robbery or murder, having elected otherwise and prosecuted the murder charge to conviction first, it is barred from prosecuting for the robbery. State v. Mowser, 4 A. L. R. (N. J.) 695, 106 A. 416. A conviction or acquittal upon the larger crime bars all the smaller crimes growing out of the same transaction. 1 Bishop on Criminal Law (5 Ed.) sec. 1057; State v. Hatcher, 136 Mo. 641; 2 Bishop's Criminal Law (7 Ed.) 1054. (6) Where an offense is a necessary element in and constitutes an essential part of another offense, and both in fact are one transaction, a conviction or acquittal is a bar to the other. State v. Clark, 289 S.W. 965. Sec. 3230, R. S. 1919, among other things, fixes the homicide which shall be committed in the perpetration of robbery or the attempt to perpetrate robbery is murder in the first degree. State v. Hopkirk, 84 Mo. 278. Therefore, robbery and murder are merged by the statute in cases where the death is the result of robbery. State v. Cooper, 13 N. J. L. 361; State v. Webster, 39 N.H. 96; Cook v. State, 24 N. J. L. 846; Fourth Blackstone Commentaries, chap. 14, p. 201; State v. Meyer, 64 N. J. L. 382, 47 A. 779. A homicide committed in the perpetration of a robbery and a robbery are one and the same offense. State v. Hopkirk, 84 Mo. 287; 1 Bishop Criminal Law (8 Ed.) 105, 107, 1060; United States v. McAndrews & Co., 149 F. 836; Moundsville v. Fountain, 27 W.Va. 182. Conviction of a lesser offense is a bar to the prosecution for the greater. Re Nielson, 131 U.S. 176, 33 L.Ed. 118; Moore v. State, 71 Ala. 307; People v. Defoor, 100 Cal. 150, 34 P. 642; 12 Cyc. 280.

Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.

(1) So far as jeopardy by reason of former conviction is concerned, it rests entirely upon the common law, which is adopted in this State. Sec. 23, Art. 2, Constitution; Secs. 7048-9, R. S. 1919; State v. Linton, 222 S.W. 849. On account of the common law as to jeopardy being in force in Missouri, Federal cases on jeopardy are applicable in Missouri. There seems to be two well recognized rules concerning jeopardy, in this: some states, including New Jersey, recognize what is known as the same transaction rule; others, the separate-offense rule, and it would seem as if Missouri follows the separate-offense rule. State v. Temple, 194 Mo. 236; State v. Hayes, 296 Mo. 63; State v. Salter, 256 S.W. 107; State v. Burgess, 268 Mo. 407; State v. Link, 286 S.W. 14; State v. Martin, 76 Mo. 339; State v. Williams, 152 Mo. 115. (2) It stands admitted that the first offense with which appellant was charged and convicted was murder in the first degree; the second, robbery in the first degree. It is evident, therefore, that appellant could not have been convicted of robbery in the first degree under the original charge of murder in the first degree and vice-versa, even though the evidence under each charge be identical. A verdict must be responsive to the charge contained in the information or indictment. State v. Jenkins, 36 Mo. 372; State v. Pitts, 57 Mo. 85; State v. Grossman, 214 Mo. 233; State v. Cronin, 189 Mo. 663; State v. Burgess, 268 Mo. 418. (3) The elements of common law murder have not been changed in Missouri. Statutory murder in the first degree does not change the elements of common law murder. No homicide can be murder in the first degree which was not murder at common law. State v. Hopkirk, 84 Mo. 287; State v. Shock, 68 Mo. 552; State v. Curtis, 70 Mo. 598; State v. Robinson, 73 Mo. 306; State v. Wagner, 78 Mo. 644. (4) The elements of robbery in the first degree, a wholly separate and distinct offense from the crime of murder in the first degree, cannot merge and become a part of the elements of common-law murder even though the commission of the two offenses was against the same person, simultaneous, and the result of one continuous transaction. State v. Bobbitt, 215 Mo. 33; Sec. 3230, R. S. 1919; State v. Hopkirk, 84 Mo. 287; Sec. 3307, R. S. 1919.

Davis, C. Cooley, C., concurs.


On May 2, 1929, the prosecuting attorney filed an information in the Circuit Court of Buchanan County, charging that defendant, on February 22, 1922, committed the felony of robbery in the first degree. Tried to a jury, a verdict was returned finding defendant guilty and assessing his punishment at twenty years' imprisonment in the penitentiary. Defendant appealed from the judgment entered on the verdict.

The facts adduced advise that Chris Heller, Sr., conducted a retail butcher shop in the city of St. Joseph at 2144 South Sixth Street. On February 22, 1922, he was sixty-five years of age. On said morning between the hours of six and six-thirty A. M., defendant entered the shop of said Heller, from whom he had previously borrowed money. It appears that Heller held a check of defendant for $ 50, which Heller had not deposited at the suggestion of defendant. On said morning he requested of Heller a further loan of $ 40, advising that, in lieu of the $ 50 check and the $ 40 loan, he would give him his check for $ 90. Some words occurred between them with respect to a refusal by Heller to loan defendant more money. Heller kept his money in a tin box in the shop, and on this morning the box contained between $ 1500 and $ 1700 in money. Heller, it appears, brought forth the tin box containing the money. Further words then occurred between the two men, whereupon defendant drew a revolver and fired four shots into the body of the said Heller, later resulting in his death. Thereupon defendant appropriated the tin box containing the money, and departed. The evidence tends to show that Heller died subsequent to defendant's departure. Suffice it to say that a police investigation revealed defendant as the perpetrator of the crimes and he so confessed.

The record shows that on April 28, 1922, the then Prosecuting Attorney of Buchanan County filed an information in the circuit court charging defendant with the crime of murder committed in the perpetration of the robbery of said Heller, on which charge defendant was arraigned and pleaded not guilty. On January 25, 1923, the successor prosecuting attorney filed an amended information, which was an ordinary pleading charging defendant with murder in the first degree. On January 29, 1923, defendant, after first pleading not guilty to the amended information, withdrew his plea of not guilty and entered a plea of guilty to the charge of the amended information. Thereupon the trial court pronounced judgment, and sentenced defendant to imprisonment in the State penitentiary for and during his natural life. In compliance with the judgment, defendant was delivered to the Warden of the state penitentiary, where he remained until he was released under an order of parole by the Governor of Missouri on February 29, 1928. Thereafter, on May 2, 1929, an information was filed, charging defendant with the robbery of Chris Heller, Sr., on February 22, 1922, with the result as heretofore related.

To defendant's plea in bar, setting forth the preceding facts, the trial court sustained a demurrer. Defendant's only contention is that the offense of robbery merged into the offense of murder, and that, having been sentenced for the murder of the said Heller, he has been put twice in jeopardy for the same offense by his prosecution for the robbery of Heller, which grew out of the same occurrence.

I. The sole ground urged by defendant for a reversal of the judgment rests on the postulate that the murder and the robbery of Heller constituted one transaction. He argues that it follows that the offenses were merged, resulting that the prosecution and conviction of defendant for the robbery of Heller, subsequent to the prosecution, plea of guilty and sentence of defendant for the murder of Heller, placed defendant twice in jeopardy for the same offense.

Section 3230, Revised Statutes 1919, is cited to show that murder and robbery, where...

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