State v. Parker

• Decision Date: 24 November 1914
• Docket Number: No. 18116.,18116.
• Parties: STATE v. PARKER.
• Court: Missouri Supreme Court

170 S.W. 1121

262 Mo. 169

STATE v. PARKER.

No. 18116.

Supreme Court of Missouri, Division No. 2.

November 24, 1914.

1. ROBBERY (§ 2)—ELEMENTS OF OFFENSE— STATUTORY PROVISIONS.

Rev. St. 1909, § 4530, making every person 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, guilty of robbery, creates but one offense containing substantially the elements of common-law robbery, and the offense may be committed either by the felonious taking of property of another from his person by violence or by putting him in fear of some immediate injury to his person.

2. ROBBERY (§ 7)—ELEMENTS —"PUTTING IN FEAR."

The fright essential to robbery, under Rev. St. 1909, § 4530, punishing the felonious taking of the property of another from his person by putting him in fear of some immediate injury to his person, must be objective, due to some act of accused, and where accused put his hand in the pocket of prosecutor, while an accomplice was conversing with him, and took money from prosecutor before he became frightened or was threatened, there was no robbery by putting prosecutor in fear.

3. ROBBERY (§ 6)—ELEMENTS OF OFFENSE— "VIOLENCE."

The violence to constitute robbery, within Rev. St. 1909, § 4530, defining robbery by violence, must precede, or be contemporaneous with, the taking of the property, and accused, who merely put his hand in the pocket of prosecutor, while an accomplice engaged him in conversation, unaccompanied by any threat or any force, except that necessary to take the money in the pocket, was not guilty of robbery by violence.

4. LARCENY (§ 12)—ACTS CONSTITUTING.

Accused, who inserted his hand in the pocket of prosecutor and took the money therein, while an accomplice engaged prosecutor in conversation, and who used no more force than was necessary to take the property, is guilty only of larceny, punishable by Rev. St. 1909, §§ 4538, 4539, as amended by Laws 1911, p. 194.

5. INDICTMENT AND INFORMATION (§ 191)— OFFENSE INCLUDED IN INDICTMENT—ROBBERY —LARCENY.

One indicted for robbery may in a proper case, be convicted of larceny.

6. CRIMINAL LAW (§ 1186)—REVERSAL AND REMANDING OF CAUSE.

Where one was convicted of robbery as charged in the indictment, while the evidence showed his guilt of larceny only, the court on appeal will reverse and remand the case.

7. INDICTMENT AND INFORMATION (§ 119)— REQUISITES OF INFORMATION—SURPLUSAGE.

An information is not bad merely because it contains surplusage added out of caution.

Appeal from Circuit Court, Marion County; David H. Harris, Judge.

Edward Parker was convicted of robbery in the first degree, and he appeals. Reversed and remanded.

Defendant, convicted in the circuit court of Marion county of robbery in the first degree, after the usual motions for a new trial and in arrest, appeals. The punishment assessed upon conviction was imprisonment in the penitentiary for a term of five years.

The facts developed upon the trial, so far as they are pertinent to the matters it has become necessary for us to discuss in the opinion, were substantially as follows:

In the afternoon of the 15th of February, 1913, one Herman Buckhold, the man alleged to have been robbed, and who is the prosecuting witness herein, was in the city of Hannibal for the purpose of selling a load of corn and of cashing a check which he had received for a car load of hay. This check was for the sum of $120 and a few odd cents. The proceeds were paid to said Buckhold in cash, which consisted, odd cents excepted of 12 ten dollar bills. Shortly after Buckhold obtained this money, defendant sold him a pair of eyeglasses for the sum of $1. In the course of the sale of these eyeglasses to Buckhold, and while paying defendant therefor, the money in the possession of Buckhold was seen by defendant. Some little time thereafter, on the same afternoon, and about 3 o'clock, Buckhold left Hannibal and started upon his return to his residence; the same being some 10 or 11 miles in a northwesterly direction from Hannibal. While Buckhold was in Hannibal and between the time of his arrival there, which was about noon, and the time of his departure therefrom, which was about 3 o'clock, he had drunk some four glasses of whisky, all of which glasses he ingenuously admits were full ones. On leaving Hannibal he purchased a pint of whisky, from which, however, prior to the events hereinafter detailed, he swears he did not drink.

Shortly after Buckhold left Hannibal the defendant Parker and one Henry Settle hired a horse and buggy and left Hannibal, ostensibly, and as they stated to the liveryman, for the purpose of going to the Oakwood Fair Ground; the same being some two miles from Hannibal, but in a different direction from that taken by Buckhold in going home.

At about the hour of 5 o'clock, defendant and said Settle caught up with Buckhold on the public road, at a point some 7 miles distant from Hannibal, and engaged in conversation with him with reference to the sort of land to be found in the neighborhood, leaving upon the mind of Buckhold, without (so far as the record discloses) saying so in direct or explicit language, the impression that they were landbuyers. Buckhold stopped his wagon. The defendant and Settle drove in front of his team and stopped their buggy, leaving the buggy across the road in such wise as to obstruct the passage of Buckhold's wagon. After some other conversation as to the soil, the country, and the scenery within view, defendant and Settle asked Buckhold to drink a bottle of beer with them. Buckhold at first demurred, but subsequently partially acquiesced; but upon defendant and Settle being unable, as they said, to find a bottle opener, Buckhold invited them to have a drink with him from the pint bottle of whisky which he had theretofore purchased in Hannibal, and which he tells us had not up to that time been opened. Both defendant and Settle took a small drink of whisky from Buckhold's bottle. Thereafter defendant came up on one side of Buckhold's wagon and Settle upon the other. Settle engaged Buckhold in a conversation relative to changing a $20 bill for him, and while Buckhold was engaged in this conversation with Settle, and somewhat engrossed therein, and while he was leaning over toward Settle, who was on the lefthand side of the wagon, the defendant climbed upon the front right wheel of the wagon, placed his hand in Buckhold's right-hand pantaloons pocket, and abstracted therefrom the sum of $2.25 in silver coin. Upon becoming aware of the actions of defendant, Buckhold struck with his whip at defendant and at his team. The team thereupon started very rapidly, and defendant was thrown or stepped from the wheel.

Since the facts which transpired at the immediate moment of the alleged robbery are pertinent and decisive, and since Buckhold is the only witness who testifies touching them, we in fairness set out below from his testimony what he said, and all he said as to the manner in which defendant committed the alleged robbery:

"Q. In your own way tell the jury just how it happened. A. You see, while I was talking to Mr. Settle, Mr. Parker got up on the wheel unbeknown to me and got his hand in my pocket, and I never had any idea, until I felt his hand in my pocket and felt the money jingle, that he was upon the wheel at all. Well, I had the whip in my hand, and I just gave him a punch, and the team started moving, and the wheel turned, and Mr. Parker was off. I guess I was scared. I didn't get scared until I got away."

On cross-examination, touching this same matter, the prosecuting witness said:

"They brought the bottle back, and one wanted me to change the money, and the other ran his hand in my pocket. I was leaning over when I felt some one's hand in my pocket. While I was talking to Settle, I felt what I thought was a man's hand in my pocket. My hair began to get `curly,' and I got frightened after the horses started to run. I didn't think there was anything wrong until he got his hand into my pocket; then I thought it was time for me to get away from him. That was the time when I noticed danger, when he got his hand in my pocket and took my money. That is all I can say. That is the time when I got scared and dug out. I got scared right then. I didn't see him when he put his hand in my pocket."

Many objections are raised by the defendant, but the above statement and the above excerpts from the testimony of the prosecuting witness illustrate the only one of the alleged errors urged upon us by defendant which we regard as pertinent. Mention of other matters complained of would do no good. Such mention would be utterly useless, either as an aid to the illumination of this case or as an aid to the science of jurisprudence, and would but serve to obscure the one decisive point in the case which we discuss in the opinion. If other facts, however illustrative of this point, shall become necessary, we will advert to them and set them out in the discussion of the legal phase involved.

Nelson & Bigger, of Hannibal, and White cotton & Wight, of Moberly, for appellant John T. Barker, Atty. Gen., and Ernest A Green, Asst. Atty. Gen., for the State.

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

The chief contention made by the defendant is that the proof does not show that he is guilty of robbery in the first degree, with which crime he was charged in the information, and of which he was convicted. At the close of the state's case, and again at the close of all of the evidence, defendant prayed the court to so instruct the jury, and the court refused to do so. We set out in the statement all of the testimony bearing upon this contention.

The crime of robbery in the first degree is defined by our statute thus:

"Sec. 4530. Every person who shall be convicted of feloniously taking the property of another from...