State v. Spray

• Decision Date: 19 May 1903
• Citation: 174 Mo. 569,74 S.W. 846
• Parties: STATE v. SPRAY.
• Court: Missouri Supreme Court

74 S.W. 846

174 Mo. 569.

STATE v. SPRAY.

Supreme Court of Missouri, Division No. 2.

May 19, 1903.

ROBBERY—INSTRUCTION—EVIDENCE OF OTHER ROBBERIES—COMPETENCY.

1. An instruction in a prosecution for robbery which correctly defined "robbery," and then required the jury to find that defendant took the property "with intent at the time to wrongfully take and carry away, and to fraudulently convert the same to his own use, and permanently deprive the owner thereof, without his consent," was sufficient, without requiring a finding that the property was taken with a felonious intent.

2. In a prosecution for robbery, the testimony of a witness as to another robbery which defendant had committed on witness within a short time of the robbery charged, and at a place only five or six blocks away, was incompetent for the purpose of corroboration and of showing intent.

3. The testimony of this witness was competent only in so far as it showed that defendant was seen in the locality when the robbery charged was committed.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Joseph Spray was convicted of robbery, and appeals. Reversed.

John A. Gernez, for appellant. Edward C. Crow, Sam B. Jeffries, and Jerry M. Jeffries, for the State.

FOX, J.

The indictment in this case was returned into court May 9, 1902, and by it the defendant is charged with being a habitual criminal and with robbery. On trial he was found guilty of robbery, and his punishment fixed at 15 years' imprisonment in the penitentiary. After an unsuccessful motion for a new trial, he has appealed to this court.

On the night of March 26th, at about 10 o'clock in the evening, George A. Mellies, a practicing physician in St. Louis, Mo., was held up and robbed of $49 in money, a gold-filled watch, and a bunch of keys; the watch was worth about $25. The doctor tells the story of the robbery as follows: "As I was nearing the corner of Seventeenth (that is, as I came to the corner of Seventeenth and Madison streets; that is, the northwest corner), a man stepped up in front of me, as I come to the corner of the pavement where Madison street and Seventeenth street meet; and, when I saw the man was standing in front of me, I looked up, and with that I saw a revolver presented to my face, and he said, `Throw up your hands;' with that, I said, `What do you mean?' and stepped back a step; and he said, `I mean business, no monkeying. I want what you have. If you make any move, I will blow your brains out'; and with that he changed his revolver from his right hand to his left, and proceeded to go through my pockets, take out my money I had in my pocketbook, and then took the money I had in my vest pocket, and then the watch, and then went in the other pocket and took the bunch of keys. After he had done that, he says, `Now, don't you follow me.' I walked over Seventeenth street to Cass, and telephoned down to the police station in regard to the matter." That night about 12 o'clock two police officers arrested defendant at his home. He was taken to the police station, where he was identified by the prosecuting witness. Notwithstanding the objection and exception of counsel for defendant, the court permitted witness Arthur Damschroeder to testify not only as to seeing the defendant some five, six, or seven blocks from the place of the commission of the offense charged, but also that defendant assaulted and robbed him. The witness fixes the time of this second robbery within a few minutes of the time fixed by the prosecuting witness as to the first offense. Police officers were also introduced; testifying as to conversations with defendant in respect to the robbery, and the identification of defendant as made by the prosecuting witness. Numerous witnesses were introduced by defendant, tending to establish the defense of an alibi. We will omit from this statement the testimony upon the charge, as contained in the indictment, of being a habitual criminal, as the jury failed to find the defendant guilty of that charge. The jury returned a verdict of guilty as to the charge of robbery, and fixed the defendant's punishment at imprisonment in the penitentiary for 15 years. From this judgment of conviction, he brings this cause to this court for review, by appeal.

As the defendant was only convicted of the charge of robbery, as contained in the indictment, there is no necessity of discussing the errors complained of which are alone applicable to the charge of being an habitual criminal.

The errors complained of in respect to the offense of which defendant was convicted are: First, that instruction No. 1, as given by the court, is erroneous, in its failure to properly define "robbery" and "larceny"; second, that instruction No. 2 was not warranted; third, that instruction No. 8 was not authorized, because based upon incompetent testimony; fourth, that the court erred in the admission of the testimony of witness Arthur Damschroeder as to the commission of a separate and independent offense.

Instruction No. 1, of which appellant complains, is as follows: "If, upon consideration of all the evidence in the light of these instructions, you believe and find from the evidence that at the city of St. Louis and state of Missouri, on or about the 26th day of March, 1902, or at any time within three years next before the finding of the indictment herein, the defendant, Joseph Spray, did assault the prosecuting witness, George A. Mellies, and by violence to his person, or by putting him in fear of immediate injury to his person, did, against his will, take from his person one bunch of keys, one gold-filled watch, one fob, and forty-nine dollars in money, or some part of said property or money, with the intent at the time to wrongfully take and carry away and to fraudulently convert the same to his own use, and permanently deprive the owner thereof, without his consent, and that the property so taken was the property of said George A. Mellies, and was of any value, then you should find the defendant guilty of robbery in the first degree, as charged in the indictment." The complaint urged against this instruction is that it "fails to state the property was taken and carried away with fraudulent and felonious intent." This same complaint has been frequently urged in this court. In the case of State v. Scott, 109 Mo. 226, 19 S. W. 89, it is clearly announced that the word "felonious" is merely descriptive of the grade of the offense, rather than of the criminal act which constitutes the offense, and ordinarily has no place in an instruction. In the case of State v. Johnson, 111 Mo. 578, 20 S. W. 302, MacFarlane, J., fully discusses this question, and reviews all the authorities. This was a case of robbery. He says: "It is particularly objected that the word `feloniously' is used in the instruction to express the intent with which the act must have been done in order to make it criminal, and the word, being technical, should have been properly defined. It was said by Judge Henry in State v. Snell, 78 Mo. 242, in speaking of this word and the necessity of defining it, that "it is employed to classify offenses, but is not a distinct element of a crime. If the facts proved establish a felony, then the crime was committed feloniously. If they establish a misdemeanor, the offense was not feloniously done. A correct definition of the word could not have aided the jury in their deliberations." In State v. Scott, 109 Mo. 226, 19 S. W. 89, it is said: "The word `felonious' is descriptive of the grade of the offense, rather than of the criminal act which constitutes the offense, and ordinarily has no place in an instruction. Robbery is made a felony by statute, and the act of robbing is felonious, and all robbery is feloniously done. The use of the word in the instruction threw no light whatever upon the transaction. A correct definition could not have aided the jury in its deliberations, nor could the failure to define it `have prejudiced defendant's case, or been an obstacle in the way of the jury to a proper verdict on the law and facts,' as was said in State v. Snell, supra. We do not wish to be understood as saying or implying that the jury should not have been instructed as to what facts, if proven, would have established a felonious intent; that is, the intent to commit the robbery." It will be noted that the instruction complained of requires the jury to find that the defendant took the property "with the intent at the time to wrongfully take and carry away and to fraudulently convert the same to his own use, and permanently deprive the owner thereof, without his consent." This declaration fully covered every element of the offense of larceny. The elements of robbery preceded this in the instruction, and were in due form. The term "felonious" or "feloniously" was not entitled to any place in the instruction. It was not necessary, and would furnish no aid to the jury in reaching a verdict. This contention must be ruled against the appellant.

As to instruction No. 2, it is sufficient to say that this instruction was applicable to the charge in the indictment of being a habitual criminal; the jury found the facts, as applicable to this instruction, against the state; hence it is unnecessary for this court to discuss it.

This leads us to the important and vital contention in this case—the complaint that the trial court committed error in the admission of the testimony of witness Arthur Damschroeder. As instruction No. 8, complained of, is based upon this witness' testimony it follows that the conclusion reached upon the admissibility of this testimony will determine the correctness or incorrectness of this instruction. Hence it will only be necessary to treat of the action of the trial court in admitting the testimony.

The record of the testimony in this cause discloses that the prosecuting witness detailed with particularity the robbery as charged in the indictment, and that...