The State v. Affronti

• Decision Date: 18 February 1922
• Citation: 238 S.W. 106,292 Mo. 53
• Parties: THE STATE v. LONIE AFFRONTI, Appellant
• Court: Missouri Supreme Court

238 S.W. 106

292 Mo. 53

THE STATE v. LONIE AFFRONTI, Appellant

Supreme Court of Missouri, Second Division

February 18, 1922

Appeal from Clay Circuit Court. -- Hon. Ralph Hughes, Judge.

Affirmed.

Ernest G. Simrall, Joseph F. Aylward and Horace Guffin for appellant.

(1) The information shows upon its face that it is invalid and insufficient to support the conviction herein, and does not charge any offense under the law against the defendant. (a) The information does not state what the defendant is alleged to have stolen, taken or carried away, whether money or other property, the value thereof, nor from whom it is alleged to have been taken, or by what means, and does not inform the defendant as to who was the owner of the property so alleged to have been taken. State v. Krueger, 47 Mo. 531; State v. Barnes, 281 Mo. 519; State v Wade, 267 Mo. 259; State v. Timeus, 232 Mo 177; State v. Keating, 202 Mo. 204; Wharton's Criminal Plead. & Prac. (9 Ed.) sec. 220; 1 Bish. Crim. Proc secs. 81, 86, 88, 519. (b) The information failed to aver the name of the real owner of the property in controversy, and did not allege that the same was taken from the person or in the presence of the real owner, and the information was not supported by the evidence, as the evidence in the case showed that the firearms mentioned in the information were owned by Sheetz Howdeshell, a relative of the persons alleged to have been robbed, and to whom he had loaned the property. State v. Lawler, 130 Mo. 371; Roscoe's Crim. Ev (7 Ed.) 908, 911; 3 Greenl. Ev. (14 Ed.) secs. 224, 228; 2 Bish. Crim. Proc. secs. 726, 1006; Comm. v. Morse, 14 Mass. 218; State v. Moore, 101 Mo. 316; State v. Morledge, 164 Mo. 526. (2) The court erred in giving, over the objections and exceptions of the defendant, Instruction 5, because the same was broader than the scope of the averments contained in the information, and because the instruction did not contain all of the essential and necessary statutory elements of the alleged offense with which the defendants was charged, nor did the instruction require the jury to find that the other alleged participants therein committed an unlawful assault or that defendant had any criminal intent to commit any alleged offense or that he had any intent to aid and abet in the commission of the same, nor did it contain or submit the facts necesary to constitute any offense under the law for the consideration of the jury, before the jury could return a verdict of guilty as required by said instruction. (a) An instruction which undertakes to cover the whole case and contains a direction to find a verdict must contain all of the essential and necessary elements of the alleged offense, and the omission therefrom of an essential element is prejudicial and reversible error, and cannot be cured by the giving of any other instruction in the case. State v. Graves, 185 Mo. 718; State ex rel. v. Ellison, 272 Mo. 583; Hall v. Coal & Coke Co., 260 Mo. 367; Wojtylak v. Coal Co., 188 Mo. 282. (b) The instruction was further erroneous in that it omitted an essential element of the offense of robbery, to-wit, criminal intention on the part of the defendant to commit the alleged offense or criminal intent on his part while aiding and abetting in the alleged commission thereof, and the jury was thereby authorized and warranted to find the defendant guilty even though he had no such intent or was innocently present at the commission of the alleged offense and not being one of the real participators therein. State v. Graves, 185 Mo. 718; State v. Brown, 104 Mo. 371; State v. O'Connor, 105 Mo. 126; State v. McLain, 159 Mo. 362; State v. Broderick, 59 Mo. 310; State v. Johnson, 111 Mo. 583; State v. Smith, 174 Mo. 588; State v. Woodward, 131 Mo. 369; State v. Ware, 62 Mo. 601; State v. Carter, 259 Mo. 359; State v. Bowers, 239 Mo. 436. (c) Instruction 5 was further erroneous in that it required the jury to find that the taking of the property in question was from the person of one who was not the real and true owner thereof, but merely a borrower of the property, and the jury were not required in said instruction to find that the property alleged to have been taken was in the presence or against the will of the true owner, which facts under the law the jury should have been required to find before returning a verdict of guilty, because said facts were a necessary and constituent element of the alleged crime of robbery. State v. Lawler, 130 Mo. 371; State v. Morledge, 164 Mo. 526; State v. Moore, 101 Mo. 316; 2 Bish. Crim. Proc. sec. 722; Com. v. Moore, 14 Mass. 217. (d) Instruction 5 was further erroneous in that it submitted facts which were not averred in the information, to-wit, the participation of other persons in the alleged offense, there being no allegation of any connection between defendant and said persons, and it authorized a verdict against the defendant without proof of a conspiracy or concerted action between himself and the others alleged to have participated in the alleged crime. State v. Johnson, 111 Mo. 584. (3) The court erred in giving Instruction 4, because the same did not require the jury to find that the assault alleged to have been made upon Amanda Howdeshell and Martha Howdeshell was with criminal intent or felonious, and the same was not supported by the evidence, because the testimony showed that the property alleged to have been taken was not owned by Amanda Howdeshell or Martha Howdeshell and was not taken from or in the presence of the real owner against his will or by force and violence to his person or in his presence. Authorities supra. (4) The court erred in giving Instruction 5 1/2, in that it assumed the defendant was a participator in the commission of a felony and the same was broader than the averments contained in the information, because there were no allegations contained in the information as to other persons participating in said alleged offense, and the jury were not required to find thereby, if he did participate therein, that the defendant had any felonious intent or that there was any concerted action or connection between himself and the other alleged participants. Authorities supra. (5) The court erred in giving Instruction 6, for the reason that there was no evidence in this case that the Misses Howdeshell had possession of the firearms in question as bailee, and the instruction invaded the province of the jury in assuming that they were such and in directing the jury that for the purposes of this trial they had a special interest therein and should be regarded as the owners of said property, although said fact was a question for the jury to decide. State v. Lawler, 130 Mo. 380; State v. Morledge, 164 Mo. 526. (6) The court erred in giving Instruction 8, in that it did not define the word "corroborated" used therein, and that such "corroboration" should go so far as to identify the person of the defendant against whom the alleged accomplice testified. State v. McLain, 159 Mo. 353; State v. Miller, 100 Mo. 606; State v. Chyo Chiagk, 92 Mo. 395. (7) The court erred in permitting the prosecuting attorney and special counsel to assume in the cross examination of defendant's character witnesses that he had been guilty of other alleged extraneous and specific offenses, when said questions did not in any manner contradict the statements as to what his reputation was, and the persistent and unfair conduct of the prosecuting attorney and special counsel in asking said improper questions poisoned the minds of the jury against the defendant, and was highly prejudicial to the defendant. State v. Seay, 282 Mo. 678-9; State v. Parker, 172 Mo. 207; State v. Teeter, 239 Mo. 485; State v. Wellman, 253 Mo. 315; State v. Phillips, 233 Mo. 305.

Jesse W. Barrett, Attorney-General, Albert Miller, Assistant Attorney-General, for respondent.

(1) The information is suffcient. It contains all necessary averments required to properly charge the crime of robbery in the first degree, and fully informs the defendant as to the charge he must meet. Sec. 3307, R. S. 1919; State v. Lamb, 141 Mo. 298; State v. Calvert, 209 Mo. 280; State v Flynn, 258 Mo. 211; State v. Williams, 183 S.W. 308. (a) Sec. 3307, R. S. 1919, defines but a single offense of robbery, but sets out two methods of perpetrating the one crime defined. The information charges in the conjunctive that the offense was committed in both ways; they not being inconsistent with or repugnant to each other, the pleading is not duplicitous. State v. Parker, 262 Mo. 169; State v. Flynn, 258 Mo. 219; State v. Williams, 183 S.W. 308. (b) It is not necessary in a robbery case that the information charge who was the actual owner of the money taken. State v. Williams, 183 S.W. 308, 310; State v. Carroll, 214 Mo. 392; State v. Montgomery, 181 Mo. 19. (3) The court did not commit error in giving Instruction 5. (a) The words "without any honest claim to such property or money on his part, and with the intent at the time to wrongfully and fraudulently deprive the said Amanda Howdeshell and Martha Howdeshell, or either of them, of their ownership therein, without consent of said Amanda Howdeshell and Martha Howdeshell" indicate the wrongful and fraudulent intent, and are sufficient to show that the taking was without the owner's consent. State v. English, 228 S.W. 746; State v. Rader, 262 Mo. 134; State v. Burgess, 268 Mo. 415; State v. Massey, 274 Mo. 589; State v. Reagan, 217 S.W. 84. (b) It is not necessary in a robbery case that the information charge or the evidence show who was the actual owner of the money taken. Proof that the person named in the information was in actual possession of the money is sufficient to sustain the charge. State v. Williams, 183 S.W. 308; State v. Carroll, 214 Mo. 392; ...