State v. Wilson

• Decision Date: 18 February 1922
• Docket Number: No. 23032.,23032.
• Citation: 237 S.W. 776
• Parties: STATE v. WILSON.
• Court: Missouri Supreme Court

237 S.W. 776

STATE v. WILSON.

No. 23032.

Supreme Court of Missouri, Division No. 2.

February 18, 1922.

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

Roy Wilson was convicted of robbery in the first degree, and he appeals. Affirmed.

Convicted of robbery in the first degree and sentenced to imprisonment for 50 years, defendant appeals. He is not represented by counsel here, and has filed no brief. Following the rule in such cases, with the motion for a new trial as a guide, we have examined the record for error.

The indictment returned by a grand jury of Jackson county, omitting caption, is as follows:

"The grand jurors for the state of Missouri, duly impaneled, sworn, and charged to inquire within and for the body of the county of Jackson and state of Missouri, upon their oaths present and charge that Roy Wilson, whose Christen name in full is unknown to said grand jurors, late of the county aforesaid, on the 12th day of June, 1920, at the county of Jackson and state of Missouri, with force' and arms, in and upon one Herbert W. Allen, unlawfully and feloniously did make an assault, and $3,163.23 lawful money of the United States, of the value of $3,163.23, the money and personal property of Daniel Frankel and Julius Lyons, copartners doing business under the style and firm name of Frankel, Frank & Co., from the person and against the will of the said Herbert W. Allen and in the presence of the said Herbert W. Allen, then and there by force and violence to the person of the said Herbert W. Allen, and by putting the said Herbert W. Allen in fear of an immediate injury to his person, feloniously did rob, steal, and carry away, against the peace and dignity of the state.

"Hunt C. Moore, Prosecuting Attorney."

Appellant was formally arraigned and entered his plea of not guilty, and on August 10, 1920, was tried, the jury returning the following verdict:

"We, the jury, find the defendant guilty of robbery in the first degree as charged in the indictment and assess his punishment at fifty years in the state penitentiary.

                                     "H. T. Moss, Foreman."
                

The facts in the case are few. In the forenoon of June 12, 1920, one Herbert W. Allen, an employé of Frankel, Frank & Co., southwest corner of Tenth street and Broadway, Kansas City, Mo., was returning to the place of business of said company from the bank with $3,163.23, being the aggregate of the company's pay roll, when he was robbed by appellant and a companion. After the robbery appellant and his associate disappeared around the corner on Broadway toward the north, and a few minutes thereafter appeared in an automobile on Admiral boulevard in said city, driving, like Jehu, furiously. There were three occupants of the car which turned south on McGee street, and was followed by a motorcycle policeman. Discovering that they were pursued, appellant and his companions increased the speed of the car to 50 miles per hour. The officer rode alongside of the car, and distinctly recognized appellant. At Eighteenth street and McGee their automobile collided with another car, throwing the three of them out. Appellant then attempted to make his escape by running across a vacant lot to the rear of a repair shop, where he accosted a colored man, and requested to be taken to a hospital, as he had been injured in the collision and was bleeding from a wound of the face. The colored man procured a car and drove eastward on Eighteenth street to Baltimore avenue, the appellant in the meantime saying "Drive me! drive me!" and giving no specific directions and naming no place to which he desired to be taken. At Sixteenth and Baltimore two policemen, who had been attracted by the speed of the car, and the appearances of appellant, followed. Upon observing the policemen, appellant left the car, and attempted flight on foot. He was apprehended, relieved of two revolvers, and taken to the police station, where he was identified by Allen as one of the men who had robbed him a short time previously.

The money was found in the street a few feet from the place where the collision occurred, and where appellant and his confederates were thrown out of their car. Appellant testified in his own behalf. He denied that he robbed Allen, or that he was in the car when the collision occurred. He said he was walking so close to the cars at the time of the collision that he was wounded from flying glass. The above verdict was returned against him, and judgment entered thereon, and he was sentenced in accordance therewith. Other facts will appear in the course of the opinion.

William S. Gabriel, of Kansas City, for appellant.

Jesse W. Barrett, Atty. Gen., and Albert, Miller, Asst. Atty. Gen., for the State.

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

Appellant challenges the sufficiency of the indictment by his motion in arrest of judgment. An examination of the indictment discloses its failure to allege that Allen was a "servant, clerk or agent in charge thereof" in accordance with the language of the statute (section 3307, R. S. 1919).

Section 3908, R. S. 1919, commonly known as the Statute of Jeofails, affirms the validity of all indictments or informations where the defects or imperfections do "not tend to the prejudice of the substantial rights of the defendant upon the merits." The indictment informed defendant that he was charged with taking from one Allen with force and violence and against his will the sum named, and that said money was the property of Frankel, Frank & Co. This was sufficient, and the inference that Allen was agent, servant, or clerk, of the owners appeared without the formal allegation. This does not violate the rule of criminal pleading to the effect that nothing shall be left to intendment or implication, and that the defendant shall be clearly apprised of the nature and cause of the accusation against him. State v. Stegner, 276 Mo. 427, 207 S. W. 826; State v. Massey, 274 Mo. 578, 204 S. W. 541.

The rule that nothing in an indictment must be left to intendment or implication refers to such necessary allegations as will inform the defendant of the nature of the charge. State v. Hascall, 284 Mo. 607, 226 S. W. 18. The indictment in question was returned under section 3307, R. S. 1919, and was sufficient without the allegation mentioned.

The indictment also omitted the word "take" from the words "feloniously, did rob, steal, and carry away." This omission did not invalidate the indictment. It was cured by the Statute of Jeofails, supra. Other indictments with similar omissions have been held valid. State v. Massey, supra, 274 Mo. loc. cit. 584, 585, 204 S. W. 542. Moreover, the words used— "rob, steal and carry away" —are sufficiently strong in their accepted meaning to imply the word "take."...