The State v. Cantrell
| Decision Date | 19 November 1921 |
| Citation | 234 S.W. 800,290 Mo. 232 |
| Parties | THE STATE v. ELMER CANTRELL, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jefferson Circuit Court. -- Hon. E. M. Dearing, Judge.
Reversed and remanded.
Jos. G Williams and J. A. Rollins for appellant.
(1) The court erred in giving instruction 1, for the reason that the testimony did not warrant the giving of said instruction. The testimony failed to show that the defendant used any force whatever in taking the money, watch or knife out of the pockets of Pressly, neither did he threaten him or put him in fear of any immediate danger whatever. In fact, the testimony on the part of the State showed, if true, that the defendant simply put his hands into the pocket of Pressly and took his money out of his pockets, with some papers, and handed him back the papers. Pressly, himself, stated, "I did not understand what was going on and did not know what was going on." If the State's testimony is true, the defendant was guilty of grand larceny, and the court should have so instructed the jury. State v. Moxey, 102 Mo. 374; State v. Palmer, 88 Mo. 568; State v Banks, 73 Mo. 592; State v. Branstetter, 65 Mo 149; State v. Mahly, 68 Mo. 315. (2) The court erred in giving instruction 2, because there is no evidence of any kind or character, nor are there any other facts to sustain the assumption that Duboise and Colman were acting in conjunction with the defendant, and no evidence that there was a common purpose, a common design, or a common intention on the part of the defendant and Colman and Duboise to rob Pressly. State v. Darling, 216 Mo. 464; State v. Meyers, 174 Mo. 359; State v. Hickam, 95 Mo. 332.
Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.
(1) The information is sufficient. It charges the offense of robbery in the first degree in the language of the statute. Sec. 3307, R. S. 1919; Sec. 3908, R. S. 1919; State v. Calvert, 209 Mo. 280, 284, 287; State v. Wilcoxen, 38 Mo. 370, 371. (a) It is no objection to the indictment that it does not in express terms charge an assault. The language employed necessarily involves the charge that an assault was committed. State v. Brewer, 53 Iowa 735; State v. Brill, 21 Ida. 269; State v. Swafford, 71 Tenn. 162; State v. Switzer, 38 Nev. 108; Lampkin v. State, 87 Ga. 516, 522. (b) The use of the term "feloniously," in the information filed in this case, applies to every essential element of the offense charged, its force reaching onward and qualifying all. Sec. 3307, R. S. 1919; 3 Bishop's New Crim. Pro., sec. 1003; State v. Brown, 104 Mo. 365, 370; State v. Davidson, 38 Mo. 374, 378. (c) The information is not fatally defective because it charges robbery, both by putting Pressly in fear of some immediate injury to his person and by violence to his person. State v. Eddy, 199 S.W. 186; State v. Flynn, 258 Mo. 211, 224; State v. Montgomery, 109 Mo. 645; State v. Calvert, 209 Mo. 280, 286. (2) The instructions given seem fairly to cover the issue joined. State v. Cantlin, 118 Mo. 100, 107; State v. Dockery, 243 Mo. 592, 596; State v. Calvert, 209 Mo. 280, 287. (3) The court did not commit error in giving instruction 2. While the instruction contained the words, "or by putting him in fear," the same not being a sufficient definition of robbery under that clause of the statute, these words so contained in said instruction were mere surplusage and non-prejudicial as the evidence in this case establishes a robbery by violence to the person and against his will. This was all that was necessary. If force be used, fear is not an essential ingredient of the crime of robbery. State v. Broderick, 59 Mo. 318; State v. Lawler, 130 Mo. 366; State v. Lamb, 141 Mo. 298; State v. Crowell, 149 Mo. 391; State v. Kennedy, 154 Mo. 268; State v. Calvert, 209 Mo. 280.
The appellant, Elmer Cantrell, and two negroes Cecil Duboise and Archie Coleman, were jointly charged with robbery, in that they feloniously stole, took and carried away from the person of C. A. Pressly, against his will, by violence to his person, and by putting him in fear of some immediate injury to his person, one gold watch of the value of twenty dollars and forty dollars in lawful money, the property of said C. A. Pressly. A severance was granted, a trial was had, defendant was found guilty as charged and his punishment fixed at imprisonment in the penitentiary for a term of five years, from which conviction the defendant appealed.
The evidence for the State tended to prove that Pressly, who lived at Bismarck, went to DeSoto, where he met Cantrell, Coleman and Duboise. After freely imbibing at all the saloons in the city, they went, in the evening, over a bridge in the outskirts of the city, where it was quite dark. There they each took one or more drinks out of Pressly's bottle of whisky. If there be any truth in the adage "in vino veritas," their testimony should be unimpeachable. While the drinking was going on, Cantrell suddenly cried out, "Look at that fellow" (meaning Pressly). or words to that effect. At the same time Cantrell caught Pressly, put his left arm around his neck, while with his right hand he took from Pressly's pockets his watch, knife and about forty dollars in money. Pressly released himself, ran into town with appellant close upon his heels, and reported the robbery, the three were arrested that night, Coleman being found at his house. Coleman's sister gave the officer Pressly's watch. The money was not recovered. Coleman and Duboise testified for the State, corroborating Pressly's evidence, but denying any complicity in the affair. The defendant, Cantrell, testified in substance that Duboise drew a gun on Pressly, ordered him to throw up his hands and then grabbed him; that he, Cantrell, started away and walked across the bridge.
I. The information follows the language of the statute, Section 3307, Revised Statutes, 1919, defining robbery in the first degree, and is sufficient. There is no merit in the objection to the first instruction given for the State.
II. The second instruction authorized the jury to find the defendant guilty of robbery in the first degree if they found from the evidence that Duboise or Coleman feloniously took the property of Pressly mentioned in evidence, from his person, against his will, by force and violence to his person, or by putting him in fear and with no honest claim to said property and with the intent to deprive Pressly of his ownership therein, and to convert the same to his or their use, "and if you shall further believe and find from the evidence that the defendant Cantrell was then and there wilfully present, aiding and abetting and encouraging them so to do or either of them." The court...
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