State v. Rosegrant, 34553.
| Citation | 93 S.W.2d 961 |
| Decision Date | 23 April 1936 |
| Docket Number | No. 34553.,34553. |
| Parties | THE STATE v. ANGELO ROSEGRANT, Appellant. |
| Court | Missouri Supreme Court |
v.
ANGELO ROSEGRANT, Appellant.
[93 S.W.2d 963]
Appeal from Circuit Court of City of St. Louis. — Hon. Julius R. Nolte, Judge.
AFFIRMED.
Thos. J. Rowe, Jr., and Henry Rowe for appellant.
(1) The indictment attempts to charge conjunctively in the same count two separate and distinct offenses that are so contradictory as to fail to indicate to defendant the particular crime charged against him. Section 4020, Revised Statutes 1929, upon which the indictment is predicated, defines disjunctively two separate and distinct offenses, which are inherently inconsistent, namely, (a) kidnaping for the purpose and with the intention of causing another to pay a sum as ransom for the release of the person abducted, and (b) kidnaping for the purpose and with the intention of causing another to offer to pay a sum as a reward for the return of the person abducted. When a statute on which an indictment is founded enumerates the offenses or the intent necessary to constitute such offenses disjunctively the indictment must charge them conjunctively where the acts are not repugnant. Sec. 4020, R.S. 1929; State v. Flint, 62 Mo. 393; State v. Lockwood, 24 S.W. 1015; State v. Weyland, 105 S.W. 660; State v. Burk, 176 S.W. 487. Where the contradictory or repugnant expressions do not enter into the substance of the offense, or where the repugnant matter is simply inconsistent with any preceding averment and the indictment will be good without them, such repugnant expressions or matter may be rejected as surplusage, but where the charge of the indictment is so repugnant as to be contradictory or inconsistent with itself, such repugnancy is fatal. State v. Flint, supra; State v. Lockwood, supra; State v. Weyland, supra; State v. Burk, supra. (2) If the offenses enumerated in the statute are not the two separate and distinct offenses indicated in the previous assignment of error and the indictment is held good, then the indictment must be taken to charge conjunctively the following two phases of the same offense, to-wit: (a) That defendants kidnaped Isaac Dee Kelley with the intention of causing his wife or other relatives to pay a sum of money as ransom or reward for his return and release, and (b) that defendants kidnaped said Isaac Dee Kelley with the intention of causing his wife or other relatives to offer to pay a sum of money as ransom or reward for his return and release. Instruction 2 authorizing the conviction of the defendant submitted the conjunctive charge in the indictment to the jury in the disjunctive and the verdict was a general verdict. Where the charge in the indictment is in the conjunctive and the instruction authorizing a verdict of guilty submits the charge to the jury in the alternative or disjunctive, a general verdict is not responsive to the charge in the indictment. State v. Brotzer, 150 S.W. 1078; State v. Washington, 146 S.W. 1164; State v. Schwarting, 288 S.W. 969; State v. Frazier, 40 S.W. (2d) 763. An instruction authorizing a verdict of guilty under an indictment charging an offense conjunctively should not be in the disjunctive but should require a finding of one particular act constituting the offense, or if more than one of the acts are set forth in the instruction they should be stated conjunctively. State v. Brotzer, 150 S.W. 1078; State v. Frazier, 40 S.W. (2d) 763. It has always been held in this State that when a defendant is charged in the indictment with two or more distinct offenses a general verdict without designating on which offense he is found guilty cannot stand. State v. McHenry, 207 S.W. 909; State v. Stewart, 44 S.W. (2d) 100; State v. Standly, 132 S.W. 1122; State v. Daubert, 42 Mo. 242; State v. Rowe, 44 S.W. 266; State v. Pace, 192 S.W. 428; State v. Conway, 145 S.W. 441; State v. Frazier, 40 S.W. (2d) 763. (3) The verdict is not responsive to the evidence for the reason that said instruction submits to the jury both charges of the indictment when the evidence only supports one of them — namely, the charge of kidnaping with the intention of causing another to pay ransom. "It is ... a well known principle of law, civil or criminal, that when there is no substantial evidence to support a material issue of fact, such issue should not be submitted to the jury." State v. Eslick, 216 S.W. 976; Champagne v. Hamey, 88 S.W. 92. In charging offenses under disjunctive statutes the pleader may charge all the acts constituting the offense, but in giving instructions the trial court should keep in mind the fact that the instructions must be based on the evidence and no issue should be submitted to them that is not supported by some evidence; and in submitting these the jury should be required, in case of conviction, to state in their verdict which one or both, if they should so find, they find the defendant guilty of. State v. Frazier, 269 S.W. 410; State v. Brotzer, 150 S.W. 1082; State v. McHenry, 207 S.W. 808; State v. Stewart, 44 S.W. (2d) 100. (4) The verdict regarded as a special verdict fails to find all the elements of the offenses charged in the indictment. The verdict reads: "We the jury find the defendant guilty of kidnaping as charged in the indictment and assess his punishment at imprisonment in the State penitentiary for a term of 20 years." Kidnaping is a substantive act which of itself is not criminal and only becomes an offense when it is combined with either of the purposes or intentions described in Section 4020, Revised Statutes 1929. Where a verdict fails to find or is silent as to some essential element of the crime, the verdict is not sufficient to sustain a judgment. State v. De Witt, 84 S.W. 956; State v. Grossman, 113 S.W. 1074; State v. Modlin, 95 S.W. 345; State v. Miller, 164 S.W. 482; State v. Bragg, 220 S.W. 25; State v. Bishop, 133 S.W. 33; State v. Griffin, 212 S.W. 877; State v. Washington, 146 S.W. 1164; State v. Jackson, 146 S.W. 1166; State v. Cuttler, 1 S.W. (2d) 96. (5) Instruction 2 fails to require the jury to find a fact essential to defendant's guilt and authorizes the jury to convict the defendant on a finding of facts tending to show only a conspiracy to commit the crime charged in the indictment. This results from the instruction's omission to require the jury to find that the kidnaping was committed by the defendant acting in concert with other person or persons within the conspiracy or they with him.
Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.
(1) The indictment and the verdict are in proper and approved form. Secs. 3563, 4020, 4021, R.S. 1929; State v. Batey, 62 S.W. (2d) 450; State v. Compton, 61 S.W. (2d) 967; State v. Dildine, 51 S.W. (2d) 1; State v. Fancher, 71 Mo. 760; State v. Gentry, 55 S.W. (2d) 941; State v. McGee, 83 S.W. (2d) 98; State v. Peak, 68 S.W. (2d) 701; State v. Pittman, 76 Mo. 56; State v. Shelby, 64 S.W. (2d) 269; State v. Spano, 6 S.W. (2d) 849; State v. Thomas, 240 S.W. 858; State v. Troup, 22 S.W. (2d) 789. (2) Instruction 2 given by the court properly declares the law. (3) The court did not err in giving Instruction 12 and said instruction is not in conflict with Instruction 2. Sec. 3735, R.S. 1929; State v. Barr, 78 S.W. (2d) 104; State v. Copeland, 71 S.W. (2d) 746; State v. Vigus, 66 S.W. (2d) 854. (4) The court did not err in refusing appellant's offered Instruction C where it gave an appropriate instruction on the same subject. State v. Daly, 210 Mo. 680; State v. Howes, 60 S.W. (2d) 684; State v. Shepard, 67 S.W. (2d) 91; State v. West, 246 S.W. 541. (5) The court did not err in refusing appellant's Instruction H when it gave an appropriate instruction on the credibility of witnesses. State v. Fitzpatrick, 267 S.W. 905. (6) The court did not err in its ruling upon the argument of the prosecuting attorney. State v. Conrad, 14 S.W. (2d) 608; State v. Evans, 68 S.W. (2d) 705; State v. Midkiff, 278 S.W. (2d) 681; State v. Sinovich, 46 S.W. (2d) 877.
BOHLING, C.
Angelo Rosegrant appeals from a judgment imposing a sentence of twenty years' imprisonment for the kidnaping of Isaac D. Kelley.
Isaac D. Kelley, a doctor of medicine specializing in diseases of the ear, nose and throat, resided in St. Louis, Missouri. On the night of April 20, 1931, he, in response to two telephone calls from one Felix McDonald (identifying himself as "Mr. Holmes"), left his home and did not return until April 28, 1931. Mr. McDonald, in the telephone conversations, informed Dr. Kelley that McDonald's nephew had recently arrived from Chicago where he had undergone a mastoid operation by a Dr. Ballinger; that the nephew was suffering severe pain in his ear and, upon the recommendation of Dr. Ballinger, they desired
Dr. Kelley to treat the nephew; that McDonald would come for Dr. Kelley; and, upon Dr. Kelley stating he preferred to drive his own car, McDonald directed Dr. Kelley to come to what he designated the "Davis" place. Dr. Kelley, following the directions given over the telephone, drove into St. Louis County and turned into a driveway where, his progress being blocked by a parked automobile, he stopped his car. A man, later identified as McDonald, came to Dr. Kelley's car, got in and, poking Dr. Kelley in the ribs with something, directed the Doctor in the operation of his automobile. After traveling some distance Dr. Kelley was taken from his car and blindfolded, and placed in another car. Resuming travel, they arrived at a house, where Dr. Kelley was taken upstairs, searched and his valuables, with the exceptions of a scarf pin, taken from him. He was made and held a prisoner and confined in different places until his release. During his detention, the abductors compelled him to wear goggles with adhesive tape over the lenses. He made a small hole with the scarf pin in the tape over each lens of the goggles that he might have some vision. At times, when his captors...
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