State v. Roderman

• Citation: 248 S.W. 964,297 Mo. 143
• Decision Date: 23 February 1923
• Docket Number: No. 23691.,23691.
• Parties: STATE v. RODERMAN
• Court: Missouri Supreme Court

248 S.W. 964

297 Mo. 143

STATE v. RODERMAN

No. 23691.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Oscar B. Roderman was convicted of robbery in the first degree, and he appeals. Affirmed.

Verne Lacy and James J. Milligan, both of St. Louis, for appellant.

Jesse W. Barrett, Atty. Can., and Henry Davis, Asst. Atty. Gen., for the State.

Statement.

BAILEY, C.

On October 1, 1920, an indictment was filed in the circuit court of the city of St. Louis, Mo., charging appellant and five other men with having, on August 21, 1920, at the city of St. Louis aforesaid, feloniously robbed one Herman Hinsman of $4,056.10. On October 7, 1920, the various defendants were arraigned and each pleaded not guilty. On November 11, 1920, they were each granted a severance. On December 7, 1920, appellant withdrew his plea of not guilty, and entered a plea of guilty. On February 4, 1921, he withdraw his plea of guilty and entered a second pica of not guilty, lie was tried before a and on March 24, 1921, the following verdict was returned against him:

"We, the jury in the above-entitled cause, find the defendant guilty of robbery in the first degree, as charged in the indictment, and assess the punishment at imprisonment in the penitentiary for (20) years.

                            "Marion F. Crabtree, Foreman."
                

Appellant filed motions for a new trial and in arrest of judgment, both of which were overruled, and thereafter, on April 10, 1921, the court rendered judgment and pronounced sentence upon appellant in conformity with the terms of the verdict,:From the above judgment; defendant appealed to this court.

State's Evidence.

The evidence on behalf of the state tends in show, in substance, that on the morning of. August 21, 1920, Herman Hinsman Line. Norman E. Dewes were employed as paymaster and salesman, respectively, for the National Refrigerator Company; that about C o'clock of said morning they went in an automobile in the Southern Commercial Savings Bank, and drew therefrom $4,056.10, with which to pay the employees of said refrigerator company. On their return to the plant of said company, at 827 Koeln avenue, in St. Louis, bin., and just west of a railroad crossing, codefendant Flowers lowered the railroad gates, and defendants Mills, Frank, and Charlie Adams approached Hinsman and Dewes with drawn revolvers, compelled them to raise their hands, and, alight from. the automobile. They then took from Hinsman's pocket $310, and from the seat of the automobile $3,746.10. They left immediately in an automobile, with said money, driven by Harry Schmelzer.

A written confession, identified as having been made by appellant, was introduced in evidence, which shows that he had conspired with the other defendants, advised them to commit the robbery, and afterwards participated in a partial division of the money obtained through the robbery. Police officers testified that appellant took them, after making his confession, to one of the defendants, where they obtained a par; of the money, which had not been divided among the conspirators.

One of the defendants testified that appellant planned and arranged the details of the robbery, and induced him to participate therein; that appellant was present and, participated in the partial division of the money among the conspirators following the robbery.

Appellant was not shown to have been present at the time of the robbery.

Defendant's Evidence.

Harry Schmelzer, a codefendant, testified that he had never seen appellant prior to the robbery. Codefendant Charles C. Adams and Roy Mills testified that the police officers threatened to arrest appellant's mother before he made his confession. Appellant testified that he did not participate in the robbery, and that he had no conversation with witness Flowers as to concocting, arranging, or planning it. He also testified that he signed a confession, because the police officers were threatening to have his mother arrested if he did not do so.

Opinion.

1. The indictment in this case, without caption and signature, reads as follows:

"The grand jurors of the state of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present, that Oscar B. Roderman, Thomas Flowers, Charles C. Adams, Harry Schmelzer, Roy Clarence Mills and Clifton Roy Frank on the 21st day of August, 1920, at the city of St. Louis aforesaid, with force and arms, in and upon one Herman J. Hinsman feloniously did make an assault; and the said Herman. Hinsman in fear of an immediate injury to his person, then and there feloniously did put, and by force and violence to his person $4,056.10, lawful money of the United States, of the value of $4,056.10, all the money and personal property of the said Herman J. Hinsman, from the person and in the presence and against the will of the said Herman J. Hinsman then and there, with force and violence as aforesaid, feloniously and violently did rob, steal, take and carry away, with the felonious intent then and there to permanently deprive the owner of the use thereof and to convert the same to their own use; against the peace and dignity of the state."

[1] It charges the defendant with robbery in the first degree, and is sufficient as to both form and substance. Sections 3307 and and 3904, R. S. 1919; State v. Huffman (Mo. Sup.) 238 S. W. loc. cit. 431; State v. Affronti (Mo. Sup.) 238 S. W. loc cit. 109, and cases cited; State v. Massey, 274 Mo. loc. cit. 584, 585, 204 S. W. loc. cit. 542; State v. Eddy, 199 S. W. loc. cit. 187; State v. Flynn, 258 Mo. 211, 167 S. W. 516; State v. Calvert, 209 Mo. loc. cit. 285, 107 S. W. 1078.

2. Appellant contends that—

"An accessory before the fact must be charged, tried and convicted as an accessory, although he may be adjudged guilty of the offense in the same degree and punished as a principal."

[2] We do not deem it necessary to review the authorities cited from other states, in respect to above matter. We are referred by appellant to Kelley's Crim. Law Practice, p. 51, § 51, State v. Granger, 203 Mo. 586, 102 S. W. 498, and State v. Stacy, 103 Mo. 11, 15 S. W. 147, as sustaining his contention. These authorities hold that an information or indictment in the form suggested by appellant would be proper, but do not decide that an indictment, like the one before us, is insufficient to charge defendant as an accessory before the fact. On the other hand, as contended by counsel for respondent, the indictment herein was sufficient in form to admit proof thereunder tending to show that appellant was guilty of robbery in the first degree as an accessory before the fact. Section 3687, R. S. 1919; State v. Fredericks and Reed, 85 Mo. loc. cit. 151; State v. Anderson, 89 Mo. loc. cit. 333; State v. Stacy, 103 Mo. loc. cit. 16, 17, 15 S. W. 147; State v. Orrick, 106 Mo. loc. cit. 119, 120, 17 S. W. 176, 329; State v. Carroll and Jocoy, 288 Mo. loc. cit. 404, 405, 232 S. W. loc. cit. 701, 702.

Section 3687, supra, reads as follows:

"Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony before the fact, shall, upon conviction, be adjudged guilty of the offense in the same degree, and may be charged, tried, convicted and punished in the same manner, as the principal in the first degree."

In State v. Stacy, relied on by appellant, at pages 16 and 17 of 103 Mo., at page 148 of 15 S. W., in discussing the legal effect of section 3687, supra, we said:

"It may be contended that the indictment is contradictory in first alleging that Sprague shot and killed the deceased, and that Stacy advised and incited him to do the act, and then concluding by alleging that Sprague and Stacy killed and murdered the deceased. There is no merit in this contention, however. Under our Criminal Code all distinction between principals and accessories before the fact have been abolished, and an accessory before the fact can be indicted and convicted as a principal. R. S. 1889, § 3944; State v. Fredericks, 85 Mo. 145; State v. Davis, 29 Mo. 391; State v. Ross, 29 Mo. 32; State v. Rucker, 93 Mo. 88; State v. Payton, 90 Mo. 220; State v. Anderson, 89 Mo. 312.

"According to these and other cases in this state, one who advises another to commit murder, and that other does commit it, the one who advises it, whether present or absent, in contemplation of law does the act himself. Hence, when the pleader in this case avers that Sprague shot and killed Cornelius, and that, before he did so, defendant Stacy advised him to do it, he simply stated the legal effect of the previous averments by the allegations that Sprague and Stacy did kill and murder Cornelius. State v. Hopper, supra."

It is contended by appellant's counsel that the utterances of this court in the above cases, in dealing with this subject, are mere dicta. It may be true that in some of the Missouri cases where this subject was considered it was not necessary for the court to pass upon this...