The State v. Reich
| Decision Date | 07 April 1922 |
| Parties | THE STATE v. GEORGE REICH, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Robert W. Hall Judge.
Affirmed.
Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.
(1) The information is sufficient. 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. 301; State v. Calvert, 209 Mo 286; State v. Flynn, 258 Mo. 219; State v. Williams, 183 S.W. 309. (2) The motion to elect was properly overruled. (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. Flynn, 258 Mo. 219-224; State v. Williams, 183 S.W. 309. (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. 310; State v. Carroll, 214 Mo. 400, 402; State v. Montgomery, 181 Mo. 29. (3) The court did not commit error in permitting the State to introduce evidence to the effect that Cora M. Kinder was cashier of the Pevely Dairy Company, and that as such she had the care, control and custody of the money in question, and that said money was held by her for the Pevely Dairy Company. State v. Williams, 183 S.W. 310; State v. Carroll, 214 Mo. 400; State v. Montgomery, 181 Mo. 24. (4) The admission in evidence of the acts, conduct and statements of co-defendants, Brendle and Benson, while engaged in the robbery, was not error. (a) Appellant was constructively present when the robbery was committed, and actually aiding and abetting at the commission of the crime. State v. Walker, 98 Mo. 110; State v. Nelson, 98 Mo. 417; State v. Crab, 121 Mo. 565. (b) When two or more persons combine or associate together for the prosecution of some fraudulent or illegal purpose, the acts and declarations of any one of them made in furtherance of the common purpose, and forming a part of the res gestae, are admissible as evidence against the others. Clark v. State, 28 Tex.App. 197; State v. Glidden, 55 Conn. 78; State v. Gatlin, 170 Mo. 362; State v. Collins, 181 Mo. 261; State v. Darling, 199 Mo. 201; State v. Bobbitt, 228 Mo. 266; State v. Potts, 239 Mo. 411. (c) The prosecution may prove the declarations and acts of one of the parties to a conspiracy made and done in the absence of the others, before proving the conspiracy, provided the proof is afterwards made. State v. Ross, 29 Mo. 51; State v. Walker, 98 Mo. 104; State v. Miller, 191 Mo. 608. (d) The order of proof of a conspiracy with reference to the introduction in evidence of the acts and declarations of the alleged co-conspirator, must be left largely to the discretion of the trial judge. State v. Fields, 234 Mo. 623; State v. Miller, 191 Mo. 608; State v. Walker, 98 Mo. 104. (5) The court did not commit error in permitting O'Brien, a police officer, to testify to the confession or admission of the defendant without preliminary proof on part of the State that it was voluntary. (a) A confession is prima-facie presumed to be voluntary unless the contrary is shown. State v. Patterson, 73 Mo. 705; State v. Meyers, 99 Mo. 119; State v. Jones, 171 Mo. 406; State v. Woodward, 182 Mo. 411; State v. Armstrong, 203 Mo. 559. (b) The fact that the confession was made to an officer or in the presence of an officer after the defendant had been arrested is not sufficient to warrant the court in excluding the confession. State v. Armstrong, 203 Mo. 559; State v. Woodward, 182 Mo. 411; State v. Brooks, 220 Mo. 83; State v. Raftery, 252 Mo. 80. (c) The fact that defendant testified he did not make the confession, or that he was punched and kicked at the police station, did not overcome the prima-facie case and the testimony of the officers. He had the full benefit of his evidence before the jury. State v. Jones, 171 Mo. 406; State v. Stebbins, 188 Mo. 397; State v. Church, 199 Mo. 631; State v. Brooks, 220 Mo. 84. (6) The court did not commit reversible error in permitting O'Brien to testify to statements alleged to have been made by co-defendant Brendle, in the presence of the defendant and while he was under arrest. (a) Brendle merely corroborated the statements then and there made by defendant. (b) The admission of such testimony was harmless. The defendant on trial could not have been injured thereby. State v. Howard, 102 Mo. 149; State v. Franke, 159 Mo. 540; State v. Baldwin, 214 Mo. 302; State v. Lehman, 182 Mo. 424. (7) The court did not commit error in permitting the State to introduce the testimony of witness Gleason concerning the leaving of two revolvers at his place of business by co-defendants Benson and Brendle, while the participants in the crime charged, including the defendant on trial, were together and fleeing from the scene of the robbery. (a) Acts and declarations occurring after the accomplishment of the object of the conspiracy are admissible when they are so closely connected with the accomplishment of the offense as to form a part of the res gestae. Martin v. State, 89 Ala. 120; Wright v. State, 10 Tex.App. 477. (b) Acts and declarations made after the accomplishment of the unlawful purpose are admissible to corroborate a confession made by a co-conspirator. State v. Kennedy, 154 Mo. 284; Wright v. State, 10 Tex.App. 477. (c) Acts of the parties, although after the consummation of the crime, done for the purpose of escaping detection, are admissible. State v. Kennedy, 154 Mo. 284; Barber v. State, 69 S.W. 515; State v. Shields, 45 Conn. 263; Carter v. State, 106 Ga. 376; Byrd v. State, 68 Ga. 662. (8) The court did not commit reversible error in the giving of instruction No. 1, in this case. State v. Dockery, 243 Mo. 596; State v. Calvert, 209 Mo. 288; State v. Flynn, 258 Mo. 219-224. (9) Appellant's assignment of error that, "It was error not to have specifically submitted to the jury in an appropriate instruction the question of the actual existence of a conspiracy," is not before this court for review. (a) The record fails to show that defendant offered or requested such instruction, and fails to show that defendant excepted at the time to the failure of the trial court to instruct specifically on the subject-matter of "conspiracy," or on "all the law of the case." State v. Pfeifer, 267 Mo. 29; State v. Goldsby, 215 Mo. 57; State v. George, 214 Mo. 270; State v. Espenschied, 212 Mo. 222; State v. Barnett, 203 Mo. 659. (b) Appellant is not charged with the crime of conspiracy. Sec. 3490, R. S. 1919; State v. Carroll, 232 S.W. 702. (10) The verdict is in proper form and responsive to the issues. Sec. 3307, R. S. 1919; State v. Meyers, 99 Mo. 116; State v. Blunt, 110 Mo. 339; State v. Lovitt, 243 Mo. 522; State v. Jourdan, 225 S.W. 907.
REEVES, C. Railey and White, CC., concur. David E. Blair, J., concurs in result.
Convicted of robbery in the first degree and sentenced to twenty years' imprisonment in the penitentiary, defendant appeals.
On the afternoon of the 7th of June, 1920, appellant, with James Benson, James Brendle and Arthur Germer, who were jointly charged with him, appeared at the branch office of the Pevely Dairy Company, 5675 Delmar Avenue, in the city of St. Louis, and robbed the cashier, Cora M. Kinder, of one thousand, five hundred and fifty dollars. On the same afternoon all of the defendants were apprehended, and appellant confessed his part in the robbery. It appears from the testimony that Brendle and Benson went into the place of business of the said Dairy Company, while appellant and Germer remained in an automobile, driven by appellant, a short distance from the place of the robbery, and that after the robbery had been committed Benson and Brendle returned to the automobile and were driven rapidly away.
The information, following the language of the statute, charged the defendants with having robbed the said Cora M. Kinder by violence and by putting her in fear. Prior to the trial appellant moved to require the State to elect, on the ground that such allegation was repugnant and duplicitous. This motion was overruled and this, amongst other complaints, is urged as error.
During the trial, objection was made to testimony tending to show that the Dairy Company owned the money taken and not Cora M. Kinder, who was named in the information as the owner. The court admitted the testimony and this also is urged as error. Other facts will be noted in the course of the opinion.
I. Appellant's motion to elect was properly overruled. The information charged that the defendants "with force and arms, in and upon one Cora M. Kinder feloniously did make an assault; and the said Cora M. Kinder, in fear of an immediate injury to her person, then and there feloniously did put," etc. Section 3307, Revised Statutes 1919, under which said information was filed, says that "every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person," etc.
The information followed the statute, using the conjunctive "and" instead of the disjunctive "or," which was proper. The testimony showed that the robbery was committed both by putting Cora M. Kinder in fear and by violence to her person. One felony was committed in two different ways. [State v. Eddy, 199 S.W. 186; State v. Flynn, 258 Mo. 211, ...
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