the State v. Parker

• Decision Date: 24 November 1914
• Citation: the State v. Parker, 170 S.W. 1121, 262 Mo. 169 (Mo. 1914)
• Parties: THE STATE v. EDWARD PARKER, Appellant
• Court: Missouri Supreme Court

170 S.W. 1121

262 Mo. 169

THE STATE v. EDWARD PARKER, Appellant

Supreme Court of Missouri, Second Division

November 24, 1914

Appeal from Marion Circuit Court. -- Hon. David H. Harris, Judge.

Reversed and remanded.

Nelson & Bigger and Whitecotton & Wight for appellant.

There is no substantial testimony to support the verdict. Therefore the court committed error in refusing to give the demurrer asked by the appellant at the close of the State's case. This was a special demurrer and went only to the sufficiency of the testimony to support the charge of robbery. The testimony of the prosecuting witness wholly fails to show that any property was taken by "violence," or "by putting the owner in fear." One or the other must be shown. Robbery in the first degree under our statute and decisions, involves an intentional putting in fear, or the use of violence by the defendant. State v Sommers, 12 Mo.App. 375; State v. Smith, 119 Mo. 439; State v. Jenkins, 36 Mo. 372; State v Howerton, 59 Mo. 91. It is of the very essence of robbery in the first degree, that the violence shall be present and immediate, and without it so being there is no case made. State v. Smith, 119 Mo. 439. It is not robbery to obtain property from another, without violence to the person by "artifice and tricking." Thomas v. State, 91 Ala. 34; Doyle v. State, 77 Ga 513. It is not robbery to obtain property from another by the use of only sufficient force, to remove property from the pocket of the owner. Fanning v. State, 66 Ga. 167; Territory v. McKern, 3 Idaho 15; State v. Sommers, 12 Mo.App. 374. The strongest case in Missouri, in support of the contention of the respondent that there is sufficient proof, in this case of the necessary force to make out a case against the defendant, is the case of State v. Broderick, 59 Mo. 345, and the facts in that case are very much stronger as to the force used than the facts warrant in this case. The respondent seems to rely on this case, to sustain the conviction of the defendant and copies in its brief nearly all the opinion of the Broderick case, and then contends that the facts in the Broderick case are similar to the facts in this case. The respondent after concluding the quotation from that opinion comments as follows: "The defendant placed himself, unawares immediately to the side of the prosecuting witness, and snatched the money which was then and there attached to the clothes of the prosecuting witness, in such manner as to create a resistance." In what way was the money alleged to have been taken attached to the clothes of the prosecuting witness. This is a new construction of the meaning of the word attach, and one that cannot be followed by any fair minded person. There is no case reported in any of the reports of this State or any other state, that tends to support this contention of the respondent. The respondent is forced by the uncontroverted facts in this case to resort to this construction in order to have this conviction affirmed.

John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.

Under the seventh, twelfth and thirteenth grounds of the motion for a new trial, appellant complains that the trial court erred in refusing to give the demurrers to the evidence offered at the close of the State's case and at the close of all the evidence herein. There was no error whatever in overruling these two demurrers. The testimony in the case conclusively showed the defendant to be guilty, at least of petit larceny, and the only question in this case of any serious nature whatever is the question as to whether or not the testimony showed the defendant to be guilty of robbery in the first degree. That testimony showed that this money was taken from the person of Herman Bockhold by the defendant thrusting his hand in the pocket of the prosecuting witness and pulling the money therefrom. The testimony of the prosecuting witness was to the effect that he suffered the money to be taken because of fear of an immediate injury being inflicted to his person by the defendant Parker and his accomplice Settles. The only question in this case, therefore, meriting consideration is whether or not the testimony of the prosecuting witness is a sufficient showing of violence or of putting in fear of an immediate injury to the person of the prosecuting witness. In this connection we call the court's attention to the cases of State v. Broderick, 59 Mo. 319, and State v. Weinhardt, 253 Mo. 629. 34 Cyc. 1799; State v. Montgomery, 109 Mo. 645, 32 Am. St. 684; Colbey v. State, 46 Fla. 112, 110 Am. St. 87; Mahoney v. People, 3 Hun (N.Y.), 202; Comm. v. Davis, 23 Ky. L. Rep. 1717; People v. Klein, 113 Ill. 596; Smith v. State, 117 Ga. 320; People v. Campbell, 234 Ill. 391, 123 Am. St. 107; State v. McCune, 5 R. I. 60, 70 Am. Dec. 176; Evans v. State, 80 Ala. 4; Snyder v. Commonwealth, 21 Ky. L. Rep. 1538; Davis v. Comm., 21 Ky. L. Rep. 1295; State v. Nicholson, 124 N.C. 820; Comm. v. Titsworth, 30 Ky. L. Rep. 402; State v. Carr, 43 La. 418; Jones v. Comm., 112 Ky. 689, 23 Ky. L. Rep. 2081, 99 Am. St. 330, 57 L.R.A. 432; Stockton v. Comm., 125 Ky. 268, 30 Ky. L. Rep. 1302; State v. Sanders, 14 N.D. 203; Britt v. State, 7 Humphr. (Tenn.) 45; Coffelt v. State, 27 Tex.App. 608, 11 Am. St. Rep. 205. In view of the authorities hereinbefore cited, we insist that the trial court properly overruled the demurrers to the evidence offered by the defendant, and that under the testimony the defendant was justly and rightly convicted of robbery in the first degree.

FARIS, J. Walker, P. J., and Brown, J., concur.

OPINION

FARIS, J.

Defendant, convicted in the circuit court of Marion county of robbery in the first degree, after the usual motions for a new trial and in arrest, appeals. The punishment assessed upon conviction was imprisonment in the penitentiary for a term of five years.

The facts developed upon the trial so far as they are pertinent to the matters it has become necessary for us to discuss in the opinion, were substantially as follows:

In the afternoon of the 15th of February, 1913, one Herman Buckhold, the man alleged to have been robbed, and who is the prosecuting witness herein, was in the city of Hannibal for the purpose of selling a load of corn and of cashing a check which he had received for a carload of hay. This check was for the sum of $ 120 and a few odd cents. The proceeds were paid to said Buckhold in cash, which consisted, odd cents excepted, of twelve ten dollars bills. Shortly after Buckhold obtained this money, defendant sold him a pair of eye glasses for the sum of one dollar. In the course of the sale of these eye glasses to Buckhold, and while paying defendant therefor, the money in the possession of Buckhold was seen by defendant. Some little time thereafter, on the same afternoon and about three o'clock, Buckhold left Hannibal and started upon his return to his residence, the same being some ten or eleven miles in a northwesterly direction from Hannibal. While Buckhold was in Hannibal and between the time of his arrival there, which was about noon, and the time of his departure therefrom, which was about three o'clock, he had drunk some four glasses of whiskey, all of which glasses he ingenuously admits were full ones. On leaving Haninbal he purchased a pint of whiskey, from which, however, prior to the events hereinafter detailed, he swears he did not drink.

Shortly after Buckhold left Hannibal the defendant Parker and one Henry Settle hired a horse and buggy and left Hannibal, ostensibly and as they stated to the liveryman, for the purpose of going to the Oakwood Fair Ground, the same being some two miles from Hannibal, but in a different direction from that taken by Buckhold in going home.

At about the hour of five o'clock defendant and said Settle caught up with Buckhold on the public road, at a point some seven miles distant from Hannibal and engaged in conversation with him with reference to the sort of land to be found in the neighborhood; leaving upon the mind of Buckhold, without (so far as the record discloses) saying so in direct or explicit language, the impression that they were land buyers. Buckhold stopped his wagon; the defendant and Settle drove in front of his team and stopped their buggy, leaving the buggy across the road in such wise as to obstruct the passage of Buckhold's wagon. After some other conversation as to the soil, the country and the scenery within view, defendant and Settle asked Buckhold to drink a bottle of beer with them. Buckhold at first demurred, but subsequently partially acquiesced; but upon defendant and Settle being unable, as they said, to find a bottle opener, Buckhold invited them to have a drink with him from the pint bottle of whiskey which he had theretofore purchased in Hannibal, and which he says had not up to that time been opened. Both defendant and Settle took a small drink of whiskey from Buckhold's bottle; thereafter defendant came up on one side of Buckhold's wagon and Settle upon the other. Settle engaged Buckhold in a conversation relative to changing a twenty dollar bill for him, and while Buckhold was engaged in this conversation with Settle and somewhat engrossed therein, and while he was leaning over toward Settle, who was on the left hand side of the wagon, the defendant climbed upon the front right wheel of the wagon, placed his hand in Buckhold's right-hand pantaloons pocket, and abstracted therefrom the sum of $ 2.25 in silver coin. Upon becoming aware of the actions of defendant, Buckhold struck with his whip at defendant and at his team. The team thereupon started very rapidly and defendant was thrown, or stepped, from the wheel.

Since the facts which transpired at the immediate moment of the alleged...