State v. Moore., No. 30580.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Davis
• Citation: 33 S.W.2d 905
• Parties: THE STATE v. ALLEN MOORE, Appellant.
• Decision Date: 31 December 1930
• Docket Number: No. 30580.

33 S.W.2d 905 THE STATE
v.
ALLEN MOORE, Appellant. No. 30580. Supreme Court of Missouri, Division 2. December 31, 1930.

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

AFFIRMED.

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 Atl. 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 Atl. 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 Fed. 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 Pac. 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. (Mo.) 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...