State v. Roselli
| Decision Date | 07 May 1921 |
| Docket Number | 22,900 |
| Citation | 109 Kan. 33,198 P. 195 |
| Parties | THE STATE OF KANSAS, Appellee, v. MIKE ROSELLI, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1921.
Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. HOMICIDE--Robbery--Information Charged Murder in the First Degree Without Stating It Was Committed in Perpetration of Robbery The defendant and a companion entered a merchant's store, and proceeded to rob him. While the robbery was in progress, the defendant's companion shot and killed the merchant. Held, it was permissible to charge the defendant with murder in the first degree, by an information in the common form, without stating the murder was committed in perpetration of robbery.
2. SAME--Evidence Proved Charge in the Information. Evidence showing the murder was committed in perpetration of robbery sustained the allegations of the information.
3. SAME--Not Necessary to Allege Conspiracy to Rob or Murder. It was not necessary the information should charge conspiracy between the defendant and his companion to rob or to murder.
4. SAME--Murder in Connection with Robbery. Robbery is a crime of violence used or threatened. It is a matter of common knowledge, derived from human experience, that a display of personal violence to accomplish robbery normally tends to the taking of life; and if, in execution of a common purpose of two persons to rob, one of them murder the victim, the other is guilty of murder.
5. SAME--Cross-examination of Accused--On Subjects Involving Him in Degradation and Disgrace. On cross-examination of the defendant, who was a witness in his own behalf, he was properly interrogated with respect to (a) subjects embraced in his direct examination; (b) the subject of his own criminal record; (c) the subject of his relation to robbers and other criminals who made his place of employment their rendezvous; and (d) subjects involving him in degradation and disgrace, although not pertaining to the robbery and homicide for which he was on trial, and although pertaining to the commission of other crimes.
6. SAME--Evidence of Reputation of Defendant's Place of Business. In rebuttal, evidence was offered and received relating to the reputation of the defendant's place of employment. The purpose was to smirch the character of the defendant with the character of the place where he worked, although he had not placed his character in issue. Held, error.
7. SAME. The evidence referred to was too weak to accomplish its purpose. Held, the error was not prejudicial.
8. SAME--No Instruction Relative to Murder in the Second Degree Required by the Evidence. The defense was that, when the merchant was robbed and killed, the defendant was at work at the place of his employment in Kansas City, Mo. The evidence was conclusive that, if he were present when the crime was committed, he and his companion were engaged in robbery. Held, a request for an instruction relating to murder in the second degree was properly denied.
9. TRIAL--Assignments of Error Without Merit. Minor assignments of error considered, and held to be without substantial merit.
James L. Hogin, and Roy R. Hubbard, both of Kansas City, for the appellant.
Richard J. Hopkins, attorney-general, E. A. Enright, county attorney, and J. N. Baird, assistant county attorney, for the appellee.
The defendant was convicted of murder in the first degree, and appeals.
On the evening of March 18, 1919, as C. P. Jehu was preparing to close his grocery store in Kansas City, Kan., George Becker rushed in at the front door, flourishing a revolver, and said, "Stick them up, boys; no fooling; we mean business." Several persons were in the store, and Becker's command was obeyed by all except Jehu. Jehu had just taken money from the cash register and put it in a sack, which he placed in his sweater pocket. Becker went toward him, and as he retreated to the rear of the store, Becker shot him twice. While Becker was moving toward Jehu, the defendant entered the store, flourishing a revolver. He covered the persons who had their hands up, searched a man standing by the stove near the center of the store, and then went to the place where Jehu was lying. Meanwhile, Becker returned to the cash register. There was evidence the defendant struck Jehu, who was still alive, on the head with a revolver, and took the sack of money from Jehu's pocket. Becker asked the defendant if he had the money, and the defendant said yes. The two then backed out of the store, went up the street, and entered a waiting automobile. The defense was that, when the killing occurred, the defendant was at work at 614 Independence avenue, Kansas City, Mo., where he was regularly employed. There was evidence no marks were found on Jehu's head, and there were some slight discrepancies in the evidence relating to some of the details of the event. There was, however, ample evidence to identify the defendant as Becker's companion, and the state's evidence left no room for any doubt about the material facts of the robbery and homicide.
The information charged a malicious, willful, deliberate, premeditated killing by Becker and the defendant, without stating the murder was done in perpetration of robbery, and it is said proof of killing in perpetration of robbery did not correspond to the allegations of the information.
The sections of the statute relating to the crime of murder follow:
On numerous occasions this court has adverted to the fact that the statute does not define murder, and that the basis of the legislation is murder at common law. For purpose of punishment murder is divided into two degrees, depending on presence or absence of deliberation and premeditation. Every murder committed by any kind of willful, deliberate and premeditated killing, is murder in the first degree. Use of poison, lying in wait, and killing in perpetrating or attempting to perpetrate arson, rape, robbery, burglary, or other felony, are statutory equivalents for the deliberation and premeditation essential to murder in the first degree. All other murders are murders in the second degree.
The code of criminal procedure requires an information to be definite and certain respecting the crime charged, and requires a statement of the facts constituting the offense. There is no substantial dispute in the authorities that, under a crimes act of the character described, these requirements are satisfied by pleading murder in the first degree in the common form. Deliberation and premeditation are ultimate facts. When alleged they denote murder in the first degree, and they may be established by proof of murder committed in perpetrating a felony, without pleading the particulars. Cases are collated in 10 Encyc. Pl. & Pr. 150, note 5; 2 Supp. Encyc. Pl. & Pr. 636; 21 Cyc. 870, notes 82 and 84; 63 L.R.A. 393, note. Later cases discussing the principle are: State v. Barrington, 198 Mo. 23, 95 S.W. 235; People v. Friedman, 205 N.Y. 161, 98 N.E. 471; People v. Patini, 208 N.Y. 176, 101 N.E. 694; Holmes v. State, 6 Okla. Crim. 541, 119 P. 430; Turner et al. v. State, 8 Okla. Crim. 11, 126 P. 452; State v. Farnam, 82 Ore. 211, 161 P. 417.
In the case of The State v. Keleher, 74 Kan. 631, 87 P. 738, it was said:
"Proof that a homicide was committed in the perpetration of a felony is held tantamount to the premeditation and deliberation which otherwise would be necessary to constitute murder in the first degree." (p. 635.)
The defendant says the information did not charge a conspiracy between the defendant and any one else to rob or kill Jehu, and without such a pleading the defendant could not be convicted of murder on evidence showing Becker did the killing. It was not necessary to plead conspiracy in terms. All participants in a crime are equally guilty, without regard to the extent of their participation. It was sufficient to charge directly those concerned with the crime, and if, in execution of a common purpose to rob, one of them did the killing, the other would be guilty of murder.
The defendant was a witness in his own behalf. He came to Kansas City, Mo., from Denver, Colo., on the last day of December 1918, and worked at 614 Independence avenue until he was arrested in April, 1919. The place was a cigar store, with tables for card playing, and the defendant had charge of cigar, sandwich, and candy cases. He said he was twenty years old at the time of the trial, and his name was Mack Roselli, but he had always gone under the name of Mack Ross. He came to Kansas City with Carl West. West was arrested in February, 1919, for beating to insensibility and then robbing a man named Peterfreund, in Kansas City, Kan., and was lodged in jail in that city. The defendant visited him while he was in jail. George Casey was implicated in the Peterfreund robbery, and the...
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State v. Berry
...were not required because the defendant was either guilty of both the felony and the murder, or innocent. See State v. Roselli, 109 Kan. 33, 40, 198 P. 195 (1921) (Defendant and a companion killed a merchant while robbing a Kansas store. Lesser included instructions to felony murder were no......
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