State v. Reich

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.Motion Section 3307, Revised Statutes 1919, under which saidto Elect. 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, 167 S.W. 516.]

II. The court did not err in the admission of testimony that Cora M. Kinder was cashier of Pevely Dairy Company and only had possession of the money in that capacity. [State v. Williams, 183 S.W. 308.] In the Williams Case one Jacob Auer wasOwnership. agent for the Wabash Railroad Company at Carrollton. The appellant in that case robbed the cash drawer, after having shot Auer while standing by the stove in the Ladies' Waiting Room. Information in that case, as here, charged the defendant with having robbed one Jacob Auer, whereas the proof showed that the property taken belonged to the Wabash Railroad in charge of Auer as agent. It was ruled that such proof was admissible. [State v. Carroll, 214 Mo. 392; State v. Montgomery,181 Mo. 19.] This ruling, both on the question of the duplicitous nature of the information and the seeming variance in the proof, did not infringe upon the right of the accused "to demand the nature and cause of the accusation," as provided by Section 22, Article II, of our Constitution, as contended by appellant.

III. In the progress of the trial, the State undertook to prove the corpus delicti before showing appellant's connection with the robbery. Objection was made by his counsel on the ground that the acts and conduct of his accomplices were not binding upon him until it appeared prima-facie to the court that he hadOrder of engaged with those actually perpetrating the robbery inProof. the common plan and purpose to accomplish it, or that he was one of the conspirators. Upon the assurance from the State's attorney that such testimony would be "connected up" the objection was overruled. This is urged as error.

In the case of State v. Walker, 98 Mo. 95, it was said:

"Where a crime is perpetrated by several persons, it is necessary to show a combination or conspiracy in order to make the acts and declarations of one the acts and declarations of all. It is for the court, in the first place, to say whether there is any evidence of a conspiracy, and for the jury to determine whether there was one, and its objects. Again, it is a matter resting largely in the discretion of the trial court as to when that proof shall be offered. The prosecution may prove the declarations and acts of one, made and done in the absence of the others, before proving the conspiracy, provided the proof is afterwards made. . . . It is therefore not material at what time the proof of a conspiracy was made."

It was said again in the case of State v. Fields, 234 Mo. 615, that "it is a principle of law in criminal procedure that 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."

In case of a conspiracy, if one of the conspirators accomplishes the purpose, all of the others are equally guilty, though not even present or participating (State v. Porter, 199 S.W. 158). The court did not err in permitting this order of proof. In this case, moreover, appellant aided and abetted Benson and Brendle in committing the robbery by remaining at a convenient distance, in order to favor their escape. This rendered him guilty without any showing as to a conspiracy. [State v. Porter, supra, l.c. 161; State v. Darling, 216 Mo. 450, l.c. 459, 115 S.W. 1002; State v. Hayes, 105 Mo. 76, 16 S.W. 514.]

In State v. Walker, supra, l.c. 110, the court in defining an aider and abettor quoted as follows:

"If he watched for his companions in order to prevent surprise, or remained at a convenient distance in order to favor their escape, if necessary, or was in such a situation as to be able readily to come to their assistance, the knowledge of which was calculated to give additional confidence to his companions, in contemplation of law he was aiding and abetting."

IV. Complaint is made to the admission of the testimony of Police Officer O'Brien in relation to a confession made by appellant in his presence while under arrest without first requiring preliminary proof that such confession was voluntary. It is to be noted that no objection whatever was made to the testimony at the time it was received, and a carefulConfession. examination of the record shows that the confession was made without the use of threats or promises and that it was wholly voluntary. Moreover, a confession is presumed to be voluntary until the contrary is shown. [State v. Patterson,73 Mo. 695; State v. Meyers, 99 Mo. 107; State v. Jones,171 Mo. 401; State v. Woodward, 182 Mo. 391; State v. Armstrong,203 Mo. 554; State v. Meyer, 293 Mo. 108.]

Appellant's denial of his confession or that violence was used to extort it did not overcome the prima-facie case made by the State's evidence, and it became a question for the jury. [State v. Brooks, 220 Mo. 74; State v. Meyer, 293 Mo. 108.]

V. Statement made by James Brendle, an accomplice, was admitted in evidence over appellant's objections. These statements were made in the presence of appellant to the sameStatement of police officers who had heard his own confession,Accomplice. and corroborated appellant's admissions. We cannot understand how this could harm appellant. He had already confessed his part in the robbery, and the statement of his accomplice only tended to corroborate him. If error at all, it was harmless. [State v. Moore, 235 S.W. 1056; State v. Baldwin, 214 Mo. 290; State v. Lehman, 182 Mo. 424.]

VI. Complaint is made against the admission of testimony as to the act of two of appellant's accomplices in leaving revolvers at the place of business of one John Gleason immediately after the robbery. This complaint is untenable. It was entirely competent to corroborateRes Gestae. the other evidence of the crime and appellant's participation therein by showing the acts and declarations of his accomplices, even though not done or said in his presence, where said acts or declarations are so closely connected with the felony as to be a part of the res gestae. [State v. Kennedy, 154 Mo. 268.]

The act in question, according to the testimony, took place within an hour after the commission of the robbery, and was obviously designed to cover up and conceal the fact that appellant and his associates had perpetrated it.

VII. Instruction numbered 1, given on behalf of the State, is not before us for review, as no objection was made by appellant to the giving of said instruction and no exceptionInstruction. noted. Complaint for the first time is made in his motion for a new trial, and that was too late. [State v. Cantlin, 118 Mo. 100, 23 S.W. 1091; State v. Pfeifer,267 Mo. 23.]

VIII. Neither can the appellant complain of the failure of the court to give any specific instructions, as no requests were made by him. [State v. Hilsabeck, 132 Mo. 348; State v.Failure to Cantlin, supra; State v. Sacre, 141 Mo. 64, 41 S.W.Instruct. 905; State v. Pfeifer, supra.]

IX. Appellant's complaint that the verdict was not responsive to the issues and insufficient to sustain a judgment is wholly without merit. The verdict is as follows:

"We, the jury, in the above-entitled cause, find the defendant guilty of robbery in the first degree, as charged in the information, and assess the punishment at imprisonmentVerdict. in the penitentiary for twenty years.

"JOHN B. KRIEGER, Foreman."

The verdict finds him guilty as charged and assesses his punishment. This was sufficient. [State v. Jordan, 225 S.W. 905, and cases therein cited.]

X. Appellant, by his motion in arrest of judgment, attacks the information on the ground that it does not inform him of the nature and cause of the accusation against him. He cites no authorities, but says that it is insufficientInformation. because of the amendment to said statute of 1903. Said amendment makes it robbery in the first degree if "convicted of feloniously taking the property of another from the person of his wife, servant, clerk, or agent, in charge thereof," etc. We have hereinbefore indicated that the information here is not vulnerable upon the grounds intimated by appellant. The information followed the statute, and the same form has been repeatedly approved. [Sec. 3307, R.S. 1919; State v. Flynn, supra; State v. Williams, supra.]

XI. Appellant has not preserved for our review the alleged objectionable remarks made by the Assistant Circuit Attorney in his argument to the jury, except in a single instance, and that was in the closing argument. The Assistant Circuit Attorney censured appellant's counsel for assailing theArgument integrity of one of the State's witnesses. Appellant'sto Jury. counsel denied that he had thus assailed the integrity of the witness in question and without waiting for a ruling of the court noted an exception, whereupon the court instructed the jury to follow the evidence in the case and no further complaints were made. Appellant was not injured by this statement, even if properly preserved for review.

XII. Appellant's contention that his theory of the case should have been submitted to the jury by an appropriate instruction is not subject to review here, as he made no requestRequest for for such instruction. [State v. Pfeifer, supra;Instructions. State v. Goldsby, 215 Mo. 48.]

If the defendant desired further instructions it was his duty to call the court's attention to any question of law arising in the case upon which the court had failed to instruct and to except at the time in the event of the court's failure to give the instructions he deemed necessary. [State v. Bond,191 Mo. 555; State v. McCarver, 194 Mo. 717; State v. Weatherman,202 Mo. 6; State v. King, 203 Mo. 560; State v. George, 214 Mo. 262, 1. c. 267; State v. Espenschied, 212 Mo. 215; State v. Barnett,203 Mo. 640.]

The same ruling should be made with respect to appellant's complaint that the court should have instructed the jury as to the circumstances under which appellant's confession was made. No objection was made to the evidence of this confession. No instruction was requested concerning it, and as stated no exception saved to the alleged failure of the court to instruct on all of the law arising in the case.

An examination of the instructions, however, discloses that the jury were fully and fairly instructed on all questions of law arising in the case, and an investigation of the entire record indicates that appellant was fairly tried, and finding no reversible error the judgment must be and is affirmed.

It is so ordered. Railey and White, CC., concur.