State v. Schneider

• Decision Date: 11 June 1930
• Docket Number: 30255
• Citation: 29 S.W.2d 698,325 Mo. 486
• Parties: The State v. Elmer Schneider, Appellant
• Court: Missouri Supreme Court

29 S.W.2d 698

325 Mo. 486

The State v. Elmer Schneider, Appellant

No. 30255

Supreme Court of Missouri

June 11, 1930

Appeal from Circuit Court of City of St. Louis; Hon. Charles W Rutledge, Judge.

Reversed and remanded.

John E. Bowcock for appellant.

(1) The information is insufficient because the alleged robbery was committed by means of dangerous and deadly weapons, to-wit four revolvers, thereby increasing the gravity of the offensive act, forming the foundation for and essential to the increase of the punishment to be inflicted under the special provision of Sec. 3310, R. S. 1919, and necessary under Art. 11, Sec. 22, of the Constitution to be pleaded to inform the defendant of the nature of the accusation, that is, designate which of the two paragraphs, inflicting different punishment, appellant was to be prosecuted under. State v. Barbee, 136 Mo. 444; State v Hayward, 83 Mo. 307; 1 Bishop Crim. Law, Sec. 81; State v. Curtis, 23 S.W.2d 124. (a) While the use of dangerous and deadly weapons in the commission of the alleged robbery were not pleaded, this material absent allegation was supplied by incompetent evidence, in direct violation of the ruling of this court. State v. Wade, 267 Mo. 256; State v. Barbee, 136 Mo. 444. (b) The information is insufficient because the pleading of the use of revolvers was necessary to enable the accused to anticipate the character of the evidence to be offered by the State, all of which said material facts were left to intendment, in violation of every fundamental rule of procedure in criminal cases. State v. Wade, 267 Mo. 256; State v. Miller, 132 Mo. 300; State v. Sekrit, 130 Mo. 406; State v. Barnes, 220 S.W. 849. (2) The court committed reversible error in submitting to the jury, under Instruction 3, the question of a prior conviction of the defendant, because there was not a fact in evidence in the entire case proving or tending to prove the discharge of the defendant from the penitentiary, and, therefore, nothing for the jury to pass upon. State v. Dalton, 23 S.W.2d 5; State v. Austin, 13 Mo. 542; State v. Menicke, 139 Mo. 548.

Stratton Shartel, Attorney-General, and Henry Depping, Assistant Attorney-General, for respondent.

(1) The information is sufficient; it contains all of the necessary averments required to properly charge the crime of robbery in the first degree and a prior conviction. It fully informs the defendant of the charge against him. Secs. 3307, 3702, R. S. 1919; State v. Taylor, 18 S.W.2d 474; State v. Bushman, 29 S.W.2d 688; State v. Calvert, 209 Mo. 286; State v. Collins, 266 Mo. 97; State v. Payne, 223 Mo. 116; State v. Macon, 287 S.W. 775; State v. Kilcullen, 256 S.W. 739. (a) The State may waive the right to try appellant for his life under new Section 3310 and try him for robbery in the first degree and a prior conviction, which would subject him to the possibility of life imprisonment as the maximum penalty. He is not in a position to complain because he was not charged with the more serious offense. State v. Taylor, 18 S.W.2d 477. (b) Under a charge of robbery in the first degree both before and after the enactment of new Section 3310, it was proper to show the use of a dangerous and deadly weapon. State v. Curtis, 23 S.W.2d 124. (2) In a prosecution, invoking Sec. 3702, R. S. 1919, it is necessary to allege and prove the discharge of the defendant from the penitentiary. State v. Dalton, 23 S.W.2d 5; State v. Austin, 113 Mo. 542; State v. Manicke, 139 Mo. 548. (a) Defendant's discharge from the penitentiary may be proved either by direct or circumstantial evidence. The circumstances in evidence warranted the jury in finding that appellant had been discharged from the penitentiary. State v. Lipschitz, 6 S.W.2d 900; State v. Lee, 298 S.W. 1044; State v. Harris, 22 S.W.2d 802. (b) Constitutional and statutory provisions (R. S. 1919, sec. 4037), under which defendant in a criminal prosecution is not required to testify, go no further than their express terms, and court and jury may take into consideration failure of defendant to produce evidence in refutation of incriminating facts. State v. Smith, 300 S.W. 1081. (c) A presumption arises, as a matter of law from the failure of the defendant to deny incriminating circumstances when he takes the stand as a witness in his own behalf. State v. Larkin, 250 Mo. 244. (d) This court may consider defendant's failure while on the stand to explain facts which tell against him in determining whether a case has been made out. State v. English, 308 Mo. 704; State v. Ayres, 285 S.W. 999; State v. Lipschitz, 6 S.W.2d 900. Appellant's motion for a new trial contains twenty-eight points, many of which are indefinite. He rests his case on two points in his brief. We will not burden the court with a lengthy brief on points which appellant has abandoned.

Henwood, C. Davis and Cooley, CC., concur.

OPINION

HENWOOD

By an information filed in the Circuit Court of the City of St. Louis, the defendant, one Joseph Buschman and one Edward Taylor were jointly charged with the crime of robbery in the first degree, as defined by Section 3307, Revised Statutes 1919. It is alleged in the information that the defendant has been previously convicted of three felonies and that Buschman and Taylor have been previously convicted of one felony, thereby bringing the case within the provisions of Section 3702, Revised Statutes 1919, known as the Habitual Criminal Act. A severance having been granted, the defendant was tried alone, found guilty "of robbery in the first degree and one prior conviction as charged in the information" and sentenced to imprisonment in the penitentiary "for his natural life," in accordance with the verdict, and, in due course, appealed.

The following statement of the evidence (allowing for alterations) is taken from the brief of the Attorney-General:

"The robbery occurred on Saturday, August 13, 1927, in the office of the Nicklin Tannery Company, a corporation in St. Louis at 409 South Second Street. William G. Nicklin, president of the company, testified: On the morning of August 13, 1927, about 11:30 o'clock, he went to his bank, and returned to his office about 12:30, with the money for his weekly pay-roll. He entered his office, which was in the front part of the building and separated from the building proper by a partition of glass and wood. He was seated on a stood, putting the money in envelopes, when a man covered him with a gun and said: 'Give us that dough.' He dropped to the floor, and, when he looked up, four men were covering him with guns. There might have been five men, but he was not sure. They took three hundred dollars and seventy-five cents of the pay-roll money and fifty dollars from his pocket. They tied his ankles and departed. He did not identify the defendant as one of the robbers, but did identify Joseph Buschman as one of them.

"O'Dell Slattery was a witness at the preliminary hearing of the defendant, Buschman and Taylor, but died before the defendant's trial. His testimony, taken down in shorthand at the preliminary hearing, was read to the jury at the defendant's trial. He testified: He worked as 'pony' boy for one John Berne in a blacksmith shop at the rear of the Nicklin Tannery Company. He was a colored boy, about eighteen years of age. He knew the defendant, Buschman and Taylor, because he had seen them around the blacksmith shop several times. On the morning of August 13, 1927, all of them came to the blacksmith shop and waited from about 9:30 A. M. until 12:15 P. M. They all got guns from some drawers in the blacksmith shop. He next saw them run into the blackshmith shop, from Nicklin's place, with a sack. Taylor sat in an automobile while the others went inside. All departed in the automobile.

"John Berne testified: He operated the blacksmith shop at the rear of the Nicklin Tannery Company. O'Dell Slattery was employed by him at the time of the robbery. He knew the defendant, Buschman and Taylor. About a week before the robbery, he heard them and two other men, known to him as Happy Haulihan and Joe Troop, planning the robbery. They gave him guns to keep for them, and arranged with him to bring the guns to the shop. On the day of the robbery, they came to his shop and waited there until Nicklin returned from the bank. He gave them their guns, and, later, the defendant, Buschman, Troop and Haulihan came running back from Nicklin's to their automobile, and departed. He thought Haulihan was driving the car. He went home that afternoon about 1:45 and saw these men at his home. Buschman handed him a handerchief containing about thirty or thirty-five dollars, for keeping the guns for them. The defendant and Buschman said that the robbery was a push-over all right, but that they didn't get what they expected. He took their guns and put them away in a chifferobe at his house. They told him to bring the guns to Schneider's (the defendant's) apartment that night, for the purpose of pulling off another job. The defendant and Buschman then departed in a red-top taxicab. They were arrested later that afternoon, shortly after getting out of a red-top taxicab.

"Records of the Circuit Court of the City of St. Louis, together with commitments, were introduced showing that the defendant had previously been convicted of the crimes of assault to kill grand larceny and robbery in the first degree. Claude Lewis, an officer of the St. Louis Police Department, testified that he had been employed at the Missouri State Penitentiary in the identification bureau, and that he saw the defendant at the penitentiary from the first part of 1922 until September 1, 1926, when he left the service of the penitentiary. The records of the State Penitentiary were introduced showing that the defendant was...