State v. Thompson

• Decision Date: 18 February 1922
• Docket Number: No. 23333.,23333.
• Parties: STATE v. THOMPSON.
• Court: Missouri Supreme Court

238 S.W. 115

STATE v. THOMPSON.

No. 23333.

Supreme Court of Missouri, Division No. 2.

February 18, 1922.

Appeal from Criminal Court, Jackson County; E. E. Porterfield, Judge.

Louis Thompson was convicted of robbery in the first degree, and he appeals. Reversed and remanded for a new trial.

On June 5, 1920, the grand jury of Jackson county, Mo., filed, in the criminal court of said county, an indictment against defendant, charging him with robbery in the first degree. He was arraigned, entered a plea of not guilty, and on September 27, 1920, the jury, before whom said case was tried, returned into court the following verdict:

"We, the jury, find the defendant, Louis Thompson, guilty of robbery in the first degree as charged in the indictment and assess his punishment at seven years in the state penitentiary. A. L. Anderson, Foreman."

The indictment charges defendant with having, on May 22, 1920, in Jackson county, Mo., unlawfully and feloniously robbed Nellie Huddleston and J. R. Prescott of $2,063, belonging to the Carnes Artificial Limb Company, a corporation, etc. The allegations of above indictment are substantially the same as those contained in the information filed in State v. Lasson (Mo. Sup.) 238 S. W. 101, wherein the latter was charged with participating in the same alleged robbery. We find upon examination of the record in both cases that the facts in relation to what occurred at the time the money was said to have been taken are correctly set out in our statement of the case in State v. Lasson, and are hereby adopted as a part of this opinion. In addition to foregoing, Officer Daugherty testified in behalf of the state that he, in company with Officer McGuire, arrested defendant Thompson on May 25, 1920, at the Liberty Messenger office, at Ninth and Oak streets. The Messenger office was operated by Lawrence Lasson and one Nigro. Defendant herein was taken to the police station the following morning after the robbery, and was there identified by Mrs. Huddleston as the man who wrenched the bag of money from her on the forenoon of May 22, 1920.

John H. Shaw testified, in substance, for the state, that he was proprietor of the Randall Hotel, 408 E. Ninth street, Kansas City, Mo., and he knew defendant Thompson; that on May 25, 1920, defendant, and a man named Lapitino, rented room 301, in above hotel; that prior to above date, Lawrence Lasson and wife boarded at said hotel, and defendant, Thompson, visited them on and off while there.

Defendant's Evidence.

Appellant testified in his own behalf that he was 25 years old at the time of trial; that he resided at 540 Holmes street, and had lived in Kansas City, Mo., all his life; that he had served 14 months in the army, and was discharged on September 5, 1919; that about one week after his discharge from the army he went to work for his brother-in-law, Maetio La Salla in a soft drink parlor, at 528 Cherry street, and was so employed continuously up to time of trial; that he had worked for different firms, whose names are mentioned, before going to the army; that on May 22, 1920, the day of the robbery, he went to work at 6:30 a. m., and worked until 3:30 p. m., and was then relieved by Joseph La Salla; that his regular hours were from 6:30 a. m. to 3:30 p. m. and that he lost no time except on Sundays; that he was paid $20 per week, and had worked the usual number of hours the day he was arrested. He denied that he took any part in the robbery of John T. Prescott and Nellie Huddleston, and denied all knowledge of the transaction.

Joe La Salla and Maetio La Salla corroborated defendant as to the hours of his employment and as to the wages he received.

In addition to foregoing, four business men of Kansas City, Mo., who had known defendant for years, testified that his general reputation for being a law-abiding and honest citizen was good.

The two police officers heretofore mentioned testified in rebuttal that defendant's general reputation for morality was bad.

The instructions and rulings of the court, as far as necessary, will be considered later.

Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, and defendant appealed to this court from the judgment against him.

Clarence Wofford and Bert S. Kimbrell, both of Kansas City, for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.

RAILEY, C. (after stating the facts as above).

1. It is contended by appellant that the trial court committed error in overruling his demurrer to the evidence at the conclusion of the whole case. The testimony herein as to what occurred at the time and place of robbery is substantially the same as that produced in State v. Lasson (Mo. Sup.) 238 S. W. 101. In disposing of a demurrer to the evidence in the Lasson Case, we held teat the state had produced substantial testimony tending to show that the defendant therein was guilty of robbery in the first degree. We are satisfied with the conclusion reached in the Lasson Case, as to the demurrer to the evidence, and on the same facts hold in this case that defendant's demurrer to the evidence at the conclusion of the whole case was properly overruled. State v. De Groat, 259 Mo. 364, 168 S. W. 702; State v. Underwood, 263 Mo. 677, 173 S. W. 1059; State v. Dinkelkamp (Mo. Sup.) 207 S. W. 770; State v. Cook (Mo. Sup.) 207 S. W. 831; State v. De Priest (Mo. Sup.) 232 S. W. loc. cit. 85, 86; State v. Bater (Mo. Sup.) 232 S. W. loc. cit. 1014, 1015; State v. Stokes (Mo. Sup.) 232 S. W. loc. cit. 111; State v. Brown (Mo. Sup.) 234 S. W. 785 et seq.; State v. Lasson (Mo. Sup.) 238 S. W. 101, not yet [officially] reported; State v. Huffman (Mo. Sup.) 238 S. W. 430, not yet [officially] reported; State v. Affronti (Mo. Sup.) 238 S. W. 106, not yet [officially] reported.

2. It is insisted by appellant that the trial court committed error in refusing to instruct the jury as to the law on grand larceny. If defendant, Thompson, and Lawrence Lasson, while acting in concert under a previous arrangement, robbed Mrs. Huddleston of $2,063, mentioned in evidence, they were both guilty of robbery in the first degree. We held, in the Lasson Case, that if the defendant therein was acting on his own account without any previous arrangement with Thompson and fled with the bag of money which fell to the pavement, he might be convicted of grand larceny, instead of robbery in the first degree, and hence was entitled to an instruction on grand larceny. In this case, if defendant, Thompson, and Lawrence Lasson were not acting in concert, or under a previous arrangement, then there could be no conviction of Thompson for grand larceny by reason of Lasson fleeing with the money, and hence defendant was not entitled to an instruction on this subject.

3. It is contended by appellant that—

Instruction 2, given by the court, "is erroneous in this, that it told the jury that they should find the defendant guilty if they found he took the money from the persons of J. P. Prescott and Mrs. William Huddleston, in their presence and against their will, `by force and violence to their persons by putting them in fear of an immediate injury to their persons.'"

The correctness of above instruction is no longer a debatable question in this court, as indicated in the following recent cases: State v. Baker, 264 Mo. loc. cit. 354, 175 S. W. loc. cit. 68; ...