State v. Whitley

• Decision Date: 25 March 1931
• Docket Number: 30550
• Citation: State v. Whitley, 36 S.W.2d 937, 327 Mo. 226 (Mo. 1931)
• Parties: The State v. Charles Whitley, Appellant
• Court: Missouri Supreme Court

36 S.W.2d 937

327 Mo. 226

The State v. Charles Whitley, Appellant

No. 30550

Supreme Court of Missouri

March 25, 1931

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge.

Affirmed.

Stratton Shartel, Attorney-General, and Walter E. Sloat, Assistant Attorney-General, for respondent.

(1) The evidence shows conclusively that Whitley's co-defendant held Christian while the defendant took his money. There was no evidence whatever of larceny, and it would have been error to so instruct. The evidence made a plain case of highway robbery. The court so instructed and it was unnecessary to instruct on either grand or petit larceny. State v Friedman, 280 S.W. 1025; State v. Daughtery, 259 S.W. l. c. 788; State v. Hall, 7 S.W.2d 1005. (2) There is no evidence whatever to show that the verdict is the result of passion and prejudice. It is supported by sufficient evidence and is a very light sentence for a robbery in the first degree. State v. Steelman, 300 S.W. 745; State v. Hepley, 279 S.W. 702; State v Renfro, 279 S.W. 704.

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

OPINION

DAVIS

In an indictment filed in the Circuit Court of Pettis County, defendant was charged with robbery in the first degree. Tried to a jury, he was found guilty, and his punishment assessed at five years in the penitentiary. After motion for a new trial filed and overruled, judgment was pronounced on the verdict, and he appealed.

The evidence adduced on the part of the State warrants the finding that, in the city of Sedalia, in Pettis County shortly after the hour of one-fifteen a. m. on January 6, 1929, the prosecuting witness, Henry Christian, after spending most of the evening in a place where gambling was carried on, was robbed while walking down a road towards home. After crossing the tracks, defendant holloed to Christian, who was toting groceries, "Wait a minute," and, on approaching him and telling him who he was, defendant took the groceries and carried them to Pettis Street. Advising the prosecuting witness that this was the nearest way home, defendant handed the groceries to him and departed, after asking for a dime, which the witness refused, saying it was too cold to go in his pocket, but that in the morning he would fix him up. Proceeding on, the prosecuting witness advanced as far as the Bachelor's Club, which he intended to enter. The prosecuting witness testified:

"I saw someone coming running from behind. I waited for a second; instead of going by me, he grabbed me by the collar with his right hand and threw his left behind my neck and stayed behind me all the time; drug me about thirty feet; when he got thirty feet away commenced trying to go in my pocket. I says, 'Man, you can't rob me' . . . When he first grabbed me, he says, 'You haven't got any business in there,' and commenced pushing me and had his arm around me. I says, 'Man, you can't rob me;' I says, 'Get away,' and he commenced twisting, he had such a grip, so he tripped me and threw me down. My head fell to the east, my feet to the west; we were scuffling, he had his arm around this way (illustrating); . . . that throwed him on the right side and me behind him . . . I kept trying to see him and I saw a man coming up from the west, running up, that I recognized to be Charley Whitley (defendant). I supposed he was coming to help me; he come up from the west, come into the north on the north side and saw that I saw him and ducked back to the back and jumped on this fellow's back and I felt him when he run his hand in my left-hand pocket and he says, 'Come on, I have got it,' and they jumped up and ran down the alley."

The prosecuting witness further stated that defendant came within three or four feet of him before he recognized him and that he recognized the voice as defendant's when he said, "Come on, I have got it." He had known defendant for about twenty years. He was unable to recognize the identity of the other robber. The record shows that the prosecuting witness and defendant both were negroes. It may be well to say that defendant is not represented in this court by counsel or brief.

I. A review of the record proper, which includes the information and the verdict, shows that it is free from error. The information follows substantially and as near as may be the information discussed in State v. Craft, 23 S.W.2d 183, thus rendering it sufficient. The verdict is general, finding the defendant guilty as charged in the indictment and assessing his punishment at imprisonment in the state penitentiary for five years. We find no fault in it.

II. Taking the motion for a new trial as the assignment of errors, we find only four questions of error preserved in it: (1) That the verdict of the jury was the result of prejudice against defendant; (2) That the evidence was insufficient to sustain a verdict of guilty; (3) That the court erred in failing to instruct the jury on the question of larceny; (4) that the court failed to instruct the jury on second degree robbery, because the evidence shows that no force was used by defendant.

We see nothing in the record that tends to establish prejudice on the part of the jury. The evidence tended to show the commission of an offense by defendant, and, if he was guilty of robbery under Section 4058, Revised Statutes 1929, he received the least punishment prescribed by the statute (Sec. 4061, R. S. 1929). [State v. Steelman, 300 S.W. 743.]

III. The evidence shows that defendant not only acted as an aider and abettor, but that he was a participant in the transaction. The unidentified man used force in strongarming the prosecuting witness and throwing him to the ground, and while thus hors de combat, his pocketbook containing twenty-five dollars was taken from him. We think this was the use of force as contemplated by the statute, and we are unable to comprehend serious question in regard thereto. The property was taken by force and against the will of the prosecuting witness....