State v. White
| Citation | 34 S.W.2d 79,326 Mo. 1000 |
| Parties | The State v. Robert White, Appellant |
| Decision Date | 20 December 1930 |
| Court | United States State Supreme Court of Missouri |
Appeal from Audrain Circuit Court; Hon. W. C. Hughes Judge.
Reversed and remanded.
Fry & Hollingsworth and Marion S. Francis for appellant.
(1) There was no proof of robbery by either force or by putting prosecuting witness in fear of injury to her person. State v. Holmes, 295 S.W. 71; State v Spivey, 204 S.W. 259; State v. Parker, 262 Mo 169, 170 S.W. 1121. (2) State's Instruction No. 1 was erroneous in that: (a) There was no evidence to support it. State v. Holmes, 295 S.W. 71; State v. Spivey, 204 S.W. 259; State v. Parker, 262 Mo. 169, 170 S.W. 1121. (b) If there was either lack of force or fear, then it was broader than the evidence warranted and, therefore, erroneous. Champagne v. Hamey, 189 Mo. 709; State v. Eslick, 216 S.W. 975; State v. Byrd, 213 S.W. 37; State v. Britt, 213 S.W. 426. (c) It did not require the concurrence of the minds of twelve jurors upon one hypothesis of guilt, as is required in criminal cases. State v. Jackson, 242 Mo. 421; State v. Geist, 195 S.W. 1050. (3) Alexander was an incompetent juror. Secs. 4013 to 4015, R. S. 1919; State v. Connor, 252 S.W. 716. Where prejudice or incompetence of juror is not discovered until after trial, the court should sustain the motion for a new trial. State v. Gonce, 87 Mo. 627; State v. Connor, 252 S.W. 716.
Stratton Shartel, Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.
(1) Since there was substantial proof, the question of its sufficiency was wholly for the jury. State v. Eddy, 199 S.W. 188; State v. Concelia, 250 Mo. 424; State v. Flynn, 258 Mo. 224. The statute on robbery defines but one felony, which may be committed in more than one way. State v. Flynn, 258 Mo. 211; State v. Eddy, 199 S.W. 187. Under the statute it was proper to submit to the jury the two separate and distinct elements, namely, robbery by force or robbery by putting the prosecuting witness in fear of immediate danger. A robbery may have both elements in it. It is proper to charge both and competent to prove both. State v. Flynn, 258 Mo. 223. (2) The complaint is that Alexander assisted in the arrest of the defendant and for that reason was not an impartial and fair juror, although he qualified as a member of the panel by stating under oath that he had not formed or expressed an opinion as to the guilt or innocence of the accused, and that he knew of no reason why he could not sit as a juror and render an impartial verdict. (a) The fact that the juror assisted in the arrest of the defendant would not disqualify him. (b) The Supreme Court will not interfere with the discretion of the trial court on the question of the competency of a juror. This whole matter was submitted to the trial judge by affidavits and also by oral testimony. After a thorough consideration the trial court decided that Alexander was a fair and impartial juror. State v. Poor, 286 Mo. 657.
Westhues, C. Davis and Cooley, CC., concur.
The defendant was charged by an information in the Circuit Court of Audrain County, Missouri, with the crime of robbery in the first degree. He was tried and convicted January 9, 1930, and his punishment fixed at five years in the state penitentiary. On January 10 defendant was granted a new trial. At the second trial, March 25, 1930, he was again convicted and given five years in the penitentiary. Motion for new trial was overruled and defendant sentenced, from which judgment he has appealed.
The defendant alleges sixteen assignments of error in his motion for new trial. Only three are pressed in the brief. After reading the record, we deem it sufficient to consider only those urged. The assignments 1 and 2 in the brief may be considered together. They are, that the court erred in submitting the case to the jury on the issue of robbery in the first degree, there being no evidence to support that issue; the second, that the court erred in giving Instruction No. 1, in that it submitted the case to the jury upon two separate and distinct hypotheses, to-wit: first, robbery by force, and, second, robbery by putting the prosecuting witness in fear of immediate danger to her person. We will only relate the evidence relevant to the issue raised. Two young ladies attending Hardin College, Mexico, Missouri, were taking a walk on October 1, 1929, about nine o'clock, P. M. While strolling along, one of the girls turned and noticed a man approaching, and she pushed her companion to the right side of the walk to enable him to pass. In a few seconds both noticed that someone was pushing them, each thinking it was her companion. At this point one of the young ladies, Roberta Stanley, looked over her shoulder and saw a negro. We quote witness's testimony, as follows:
The other young lady, Jean Middendorff, testified in part, as follows:
The question presented is, should the court, under the testimony, have submitted to the jury an instruction on robbery in the first degree, as defined in Section 3307, Revised Statutes 1919. The instruction, in so far as pertinent to the issue, is as follows:
"If you find and believe from the evidence beyond a reasonable doubt that on the first day of October, 1929, at and in the County of Audrain and State of Missouri, the defendant feloniously took and carried away from the person of Jean Middendorff against her consent by force and violence to her person and by putting her in fear of immediate injury to her person, the pocket book and money described in evidence, . . ."
Reviewing the authorities on the question as to the amount of force necessary to constitute robbery in the first degree, there seems to be some conflict of authority. However, on a close examination of these cases we find them to be fairly harmonious. In the case of State v. Broderick, 59 Mo. 318, the evidence discloses that the defendant committed the theft by forcibly tearing a watch chain from the vest and watch of the prosecuting witness, the chain being fastened both to the vest and watch. The court in that case said:
In that case the court held that the act of the defendant constituted robbery, since enough force was used to tear the chain from the vest and watch. The Broderick case was cited and approved in State v. Moore, 106 Mo. 480, 17 S.W. 658; State v. Parker, 262 Mo. 169, 170 S.W. 1121; State v. Spivey (Mo. Sup.), 204 S.W. 259. The Court of Appeals considered this question in State v. Sommers, 12 Mo.App. 374. Here the testimony disclosed that the defendant attempted to snatch from the hands of a girl a bag in which she was carrying money. The defendant was prosecuted for larceny. The court instructed on an attempt to commit larceny. The court in that case said:
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