State v. Sturrs

• Decision Date: 10 June 1932
• Docket Number: No. 31723.,31723.
• Citation: State v. Sturrs, 51 S.W.2d 45 (Mo. 1932)
• Parties: STATE v. STURRS.
• Court: Missouri Supreme Court

51 S.W.2d 45

STATE v. STURRS.

No. 31723.

Supreme Court of Missouri, Division No. 2.

June 10, 1932.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

Ellis Sturrs was convicted of robbery in the first degree by means of a dangerous and deadly weapon, and he appeals.

Affirmed.

Stratton Shartel, Atty. Gen., and Carl J. Otto, Asst. Atty. Gen., for the State.

WHITE, P. J.

Appellant was charged jointly with J. D. Suggs under section 4061, R. S. 1929, with robbery in the first degree by means of a dangerous and deadly weapon, committed June 1, 1930, upon Sit Yen from whom the defendants took by force and violence the sum of $24. Suggs pleaded guilty. The case went to trial against Sturrs. The jury found him guilty, and his punishment was assessed at ten years in the penitentiary.

Sit Yen conducted a chop suey establishment at 3210 Franklin avenue, St. Louis. About two o'clock Sunday morning, June 1, 1930, Sit Yen, Lum Bong, his chef, Helen Bailey, a waitress, and Mary McGee, a colored dishwasher, were seated in the kitchen, a rear room of the establishment. There was also a customer in the room. The defendant was first seen looking in at the window, which he passed twice. About two o'clock he and Suggs came into the restaurant and gave an order to the waitress. While she served them the defendant was seated at a table, and Suggs was standing looking out of the window. She placed the order on the table, and asked for thirty cents. Just then Suggs turned the Yale lock on the door, extinguished the front side lights, displayed a pistol, announced a holdup, and ordered the waitress and the customer into the kitchen. Sit Yen and Mary McGee ran into an adjoining bedroom and locked the door. Suggs threatened to shoot, but promised he would not hurt them if they came out. They came out and defendant ordered Lum Bong, Helen Bailey, and the customer to stand in the corner of the kitchen with their hands up. The defendant then searched for money in the bedroom, while Suggs made threats. Defendant finally found a metal money box and took from it about $14 in bills and silver. The two also opened the cash register and took about $11 from that. The two robbers remained only a few minutes and disappeared.

The defendant testified that he met Suggs about midnight; they took a ride together, and Suggs suggested that they go get something to eat; that defendant had no intention of robbery, and acted because he was in fear of an employer of Suggs, named Orlando, and was afraid of being shot.

I. The information in the first place charged that Lum Bong was the person robbed instead of Sit Yen. Lum Bong was the cook. Both Bong and Yen were present and were held up at the time, but the money taken was that of Sit Yen. Error is assigned in that there was a variance between the pleading and the proof. Section 3562, R. S. 1929, in regard to a variance, says: "Whenever * * * there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof, in the Christian name or surname, or both Christian name and surname, or other description whatsoever, or other person whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, or in the ownership of any property named or described therein, such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had shall find that such variance is material to the merits of the case and prejudicial to the defense of the defendant."

To say nothing of the misnaming of the owner of the restaurant, there was a variance in the ownership of the property described and of the person robbed. The appellant failed to present to the trial court any complaint of a variance in such description, and the trial court did not hold such variance to be material to the merits of the case. State v. Fike, 324 Mo. loc. cit. 808, 24 S.W.(2d) 1027. Therefore there was no error.

II. The prosecutor,...