THE STATE v. BERT BROYLES, Appellant
295 S. W. 554
Supreme Court of Missouri
June 3, 1927
Vol. 317 Mo. 279
Division Two
No witness at the trial testified to seeing the shooting.
The evidence on both sides tends to show that appellant could have left her husband in the little bedroom to finish his quarrel alone and found safe refuge from his wrath, but she felt equal to the occasion, without calling for help or protection from her roomers or other persons in the house and near at hand.
An examination of Davis showed that he had a gunshot wound just above and to the right of his navel, and that a metallic bullet penetrated his abdominal cavity, entering at the point mentioned and coming out on his left side. He died December 10, 1925, of general peritonitis, and this prosecution was instituted in the Circuit Court of the City of St. Louis within a few weeks thereafter.
The testimony of two physicians, one who attended Davis at the hospital and another who made a post-mortem examination, tends to show that the gunshot wound was the direct and producing cause of general peritonitis, which resulted in his death.
The evidence clearly establishes the corpus delicti and it is amply sufficient to support the verdict. [State v. Henke, 285 S. W. 392.]
We find no error in the record proper.
It follows that the judgment should be affirmed and it is so ordered. Higbee and Davis, CC., concur.
PER CURIAM:—The foregoing opinion by HENWOOD, C., is adopted as the opinion of the court. All of the judges concur.
THE STATE v. BERT BROYLES, Appellant.—295 S. W. 554.
Division Two, June 3, 1927.
1. WITNESS: Indorsement When Called: Accomplice: Surprise. It is not error to permit the name of a witness to be indorsed on the indictment at the time he is offered as a witness for the State; and the fact that he is an accomplice does not affect his competency, but only his credibility. When such indorsement is made, the defendant may move for a continuance on the ground of surprise, but without such motion it is not error to permit the witness to testify.
2. INDICTMENT: Attempted Robbery: Involved and Inartificially Drawn. An indictment alleging that defendant and three others “with force and arms in and upon one G. O. Jury” and two others “feloniously did make an assault and the said G. O. Jury” and said two others “in fear of injury
3. ————: ————: Bank: Cashier. An indictment charging the defendant of an attempt to rob a bank may properly charge that the cashier was the owner and lawfully in the possession thereof and that defendant attempted to rob the cashier of his property, or that the bank was the owner of the money attempted to be taken.
4. ————: ————: Wrong Name of Bank: Variance. Variance between an indictment charging that defendant attempted to rob the Bank of Barnhart, and proof that the only bank in Barnhart was the Farm & Dairy Bank, is non-prejudicial in the absence of a finding by the trial court that it was material.
5. EVIDENCE: Attempted Robbery: Competency of Acts of Co-conspirators. Where by the evidence, both for the State and the defendant, the defendant and three others came to the town in an automobile with the purpose of robbing a bank, and that a part of their plan was that two of them should terrorize the persons found in the postoffice building, from which by a door in the partition wall between the two buildings the rear end of the bank could be entered, and that one or both of them should enter the bank through such door while the defendant and the other were engaging the attention of the cashier at his window, further evidence of the acts of the two in the postoffice while defendant and the other were engaged in conversation with the cashier and that when the cashier went to the door one of the two tried to shoot him, but failed because his pistol snapped and the cashier slammed the door, was admissible in the trial of defendant for the attempted robbery.
6. ————: ————: Sufficient. Proof that four persons had formed a conspiracy to rob a bank, and that a part of their plan was that two of them should terrorize persons in the adjoining postoffice building and that one or both of them should enter the bank by a rear door through the partition wall between the buildings while defendant and the other were engaging the attention of the cashier at his window, and further evidence that defendant and one of them came into the bank and engaged in conversation with the cashier, who hearing a noise in the post office went to the door, and when he opened it one of them snapped a pistol in his face; that he slammed the door, returned to his counter, picked up a revolver, and ordered defendant and the other to leave, and as they backed out of the bank he saw a pistol in defendant‘s hand; that the cashier followed them to the sidewalk, and the defendant and the cashier exchanged shots; that thereupon the other two came out of the post office, and shot at the cashier; that the four then ran, got in their automobile and drove rapidly away, firing at some of the citizens as they went, is sufficient to support a verdict finding defendant guilty of an attempt to rob the bank. The attempt of the man in the post office to shoot the cashier was an overt act committed in the execution of their concerted plan to rob the bank.
7. ————: ————: Definition: Conspiracy: Overt Act. The attempted shooting of the cashier of the bank in an effort to accomplish the concerted
8. EVIDENCE: Attempted Robbery: Overt Act: Intent: Conspiracy. In the trial of a defendant charged with an attempted robbery the intent is material and must be alleged and proved; but no actual demand of money is necessary. Any conduct which, if it had been followed by taking property, would have been robbery, is evidence of an intent to rob. An admission by defendant that he and his three accomplices went to a bank for the purpose of robbing it, and that in the execution of the purpose one of the four committed an overt act, namely, an attempt to shoot the cashier, while defendant and another were present for the purpose of assisting in the robbery, is sufficient to establish an attempt to rob.
9. INSTRUCTION: Falsus in Uno, etc. An instruction on falsus in uno, falsus in omnibus is properly refused unless there is a basis for it in the evidence.
10. ————: Circumstantial Evidence. An instruction on circumstantial evidence is required where the State relies solely upon such evidence, but not otherwise.
Corpus Juris-Cyc. References: Criminal Law, 16 C. J., Section 93, p. 113, n. 16; Section 880, p. 485, n. 43; Section 1334, p. 668, n. 33; Section 1410, p. 689, n. 78; Section 1420, p. 694, n. 33; Section 2027, p. 797, n. 57; Section 2433, p. 1010, n. 12; Section 2442, p. 1017, n. 98; Section 2506, p. 1063, n. 85; 17 C. J., Section 3330, p. 55, n. 99; Section 3626, p. 287, n. 58; Section 3729, p. 359, n. 64. Robbery, 34 Cyc., p. 1813, n. 2, 5.
Appeal from Jefferson Circuit Court.—Hon. E. M. Dearing, Judge.
AFFIRMED.
North T. Gentry, Attorney-General, and L. Cunningham, Assistant Attorney-General, for respondent.
(1) The indictment is in proper form and sufficient to charge the defendant with the commission of the crime of attempted robbery. State v. Newman, 289 S. W. 831. (2) The evidence shows that defendant entered the bank with intent to rob. The cashier testified that when he ordered the defendant out, the defendant had a pistol in each hand. The evidence further shows that the defendant and others were acting in concert to commit robberies, and defendant‘s accomplices were robbing the post office and one of them had pointed and snapped a pistol at the cashier during the time defendant was attempting to rob the bank. State v. Tate, 156 Mo. 119; 16 C. J. 112-115. The intent to use force may be inferred from the circumstances. State v. Smith, 80 Mo. 518. The intent may be gathered from the general conduct of the defendant. Kelley‘s Criminal Law & Procedure (3 Ed.) sec. 636, p. 560; State v. Williams, 11 Mo. App. 600; State v. Davidson, 172 Mo. App. 356. (3) It was not error for the court to permit McKinley to testify as a witness. The fact
HIGBEE, C.—The defendant and two others were charged by indictment with having attempted to rob G. O. Jury, cashier of the Bank of Barnhart, in Jefferson County. The defendant was tried separately on May 14, 1925, found guilty of assault with intent to rob, as charged in the indictment, and his punishment assessed at imprisonment in the penitentiary for four years. From a sentence in accordance with the verdict of the jury, the defendant appealed. He has not favored us with a brief.
The indictment charges that Bert Broyles, Steve Gregory and William Stocker, on February 28, 1925, at the County of Jefferson, with force and arms in and upon one G. O. Jury, J. E. Jury and George C. Stein, feloniously did make an assault and the said G. O. Jury; J. E. Jury and George C. Stein in fear of injury to their immediate persons by means of pistols loaded with powder and leaden balls, did feloniously put, did then and there feloniously and unlawfully by force and violence attempted upon the persons, G. O. Jury, J. E. Jury and George C. Stein, attempt feloniously to rob G. O. Jury of one thousand dollars, all of the goods and property of the Bank of Barnhart, a corporation, etc., from the said G. O. Jury, the cashier of the Bank of Barnhart aforesaid, and the agent, servant and collector of the same, and who was then and there in possession and control of said money, then and there with force and violence attempted feloniously and violently to rob, steal, take and carry away, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State.
The evidence for the prosecution is that on the morning of February 28, 1925, Bert Broyles, Clarence McKinley, William Stocker and Steve Gear, alias Gregory, met by appointment in St. Louis, and drove south through St. Louis County in a Marmon car with Broyles at the wheel, to the village of Barnhart in Jefferson County, with the purpose of robbing the bank at Barnhart. They had loaded revolvers and gave McKinley a suit case in which the money of the bank was to be put and carried away. The bank and the post office were in adjoining buildings, which were connected by a door near
The defendant testified that he and Gear, McKinley and Stocker drove to Barnhart; that he and McKinley went into the bank and talked with the cashier about work; that the cashier went back to another room, came back with a gun and told them to beat it. Continuing, Broyles testified: “We got out; neither of us had a gun. Q. Now, when you were in the bank talking to Mr. Jury, why didn‘t you rob the bank? A. My heart failed me and I didn‘t have the desire to. Q. I will ask you whether or not while you were in the bank you abandoned your intention of robbing the bank before Mr. Jury came up there with a gun? A. I changed my mind before he came up there with a gun, yes, sir.” Here the defendant was shown three guns by his counsel, one of which, an automatic, he said was his and that he had it with him.
I. When the State offered Clarence McKinley as a witness it was objected that his name was not indorsed on the indictment. The court permitted this to be done and allowed him to testify over the defendant‘s objection. He testified that he was an accomplice in the attempt to rob the bank. There was no error in permitting the name of the witness to be indorsed on the indictment. [
II. While the indictment is somewhat involved and inartificially drawn and may not be commended as a precedent, still we think it sufficiently charges the defendant with an attempt to rob by violence and meets all the requirements of
The evidence sustained these averments. It showed that G. O. Jury was cashier of the bank; that it was a corporation and that Jury, as cashier, was in possession and control thereof. The indictment, as against the defendant, might properly have charged that Jury was the owner and lawfully in possession thereof and that the defendants attempted to rob Jury of his property. Or it might have charged, as it did, that the bank was the owner of the money. [State v. Carroll and Gleason, 214 Mo. 392, 401, 113 S. W. 1051; 21 L. R. A. (N. S.) 311; State v. Affronti, 292 Mo. 53, 71, 238 S. W. 106; State v. Reich, 293 Mo. 415, 422, 239 S. W. 835.]
We have not overlooked the fact that the indictment charges an attempt to rob the cashier of the “Bank of Barnhart,” while G. O. Jury testified he was cashier of the “Farm and Dairy Bank” at Barnhart at the time of the attempted robbery. So far as the record shows there was but one bank at Barnhart and all of the other witnesses, including those for the defendant, referred to it as the Bank of Barnhart. This presents a case of variance between the charge and the proof, but it is provided by
III. It is claimed in the motion for new trial that the court erred in overruling the defendant‘s demurrer at the close of all the evidence and that the court also erred in admitting evidence as to the
It appears to be difficult to frame a satisfactory definition of what constitutes an attempt to commit a crime. Webster‘s New International Dictionary has this definition: “Attempt to commit a crime, Law, such an intentional preparatory act as will apparently result, if not extrinsically hindered, in a crime which it was intended to effect.”
In State v. Smith, 80 Mo. 518, Judge SHERWOOD said: “An assault with intent may exist without the actual attempt. [Regina v. Dungey, 4 F. & F. 102, and note.] There need not be a direct attempt at violence, but indirect preparations toward it, will, in certain circumstances, constitute an assault. [Citing authorities.] Thus it has been held that where the prisoner decoyed a female child under ten years of age into a building, and was detected within a few feet of her in a state of indecent exposure, although he had not touched her, he was properly convicted of assault with intent to commit a rape. [Hays v. People, 1 Hill, 351.] The intent to use force may be inferred from the circumstances.”
In State v. Davidson, 172 Mo. App. 356, 363, 157 S. W. 890, Judge TRIMBLE said: “Black‘s Law Dictionary, p. 103, defines an attempt in criminal law to be ‘an effort or endeavor to accomplish a crime, amounting to more than a mere preparation or planning for it, and which, if not prevented, would have resulted in the full con-
“In order that there may be an attempt to commit a crime, whether statutory or at common law, there must be some overt act in part execution of the intent to commit the crime, but which falls short of the contemplated crime, the difference between attempt and commission being that the act or step fails to produce the result intended.” [16 C. J. 113, sec. 93. See also State v. Tate, supra.]
In Kelley‘s Crim. Law, 560, it is said:
“The intent to rob is material and must be alleged and proved. But no actual demand of money is necessary; the intent may be gathered from the general conduct of the defendant—menaces, threats, violence, the time and place of the assault, and in short any conduct which, if it had been followed by taking property, would have been robbery, will be evidence of an intent to rob.”
Here we have an admission of the defendant that he and his accomplices went to the bank for the purpose of robbing it; in the execution of that purpose Stocker, one of the accomplices, committed an overt act, attempting to shoot G. O. Jury, the cashier, while Broyles and McKinley were present to assist in the robbery. The court properly admitted evidence of the actions of Gear and Stocker in the post office as part of the res gestae and properly overruled the demurrer to the evidence at the close of the case.
The court instructed the jury upon all questions of law arising in the case necessary for their information in giving their verdict, including the subjects of good character, the credibility of the witnesses, the presumption of innocence and reasonable doubt. Two of the instructions given for the State read as follows:
“B. The court further instructs the jury that unless you believe from the evidence beyond a reasonable doubt that the defendant, Bert Broyles, at the town of Barnhart, County of Jefferson, State of Missouri, did feloniously make an assault upon G. O. Jury or J. E. Jury or George C. Stein and did then and there feloniously intend by means of said assault to take from the persons or presence of said G. O. Jury some portion of his property or property in his care and custody, belonging to the Bank of Barnhart, by putting him in fear of immediate injury to his person, and unless you believe that in said attempted robbery defendant committed some act towards the accomplishment thereof, or if you have a reasonable doubt thereto, you will acquit the defendant.
“C. You are instructed that even though you may believe that defendant Bert Broyles came to Barnhart and entered the Bank of Barnhart with the intent to rob the said bank yet if you further be-
These instructions were favorable to the defendant.
The court properly refused all of the defendant‘s instructions. One of these was an instruction on falsus in uno, falsus in omnibus. An instruction authorizing the jury to disregard the testimony of a witness on this ground should not be given unless there is a basis for it in the evidence. [State v. Palmer, 88 Mo. 568, 572; Lloyd v. Meservey, 129 Mo. App. 636, 108 S. W. 595.] The evidence did not warrant the court in giving this instruction.
The defendant was not entitled to an instruction on circumstantial evidence. Such an instruction is required where the State relies solely on circumstantial evidence. In this case, however, the evidence for the State was direct. The jury might well have found the defendant guilty on his own testimony. [State v. Crawford, 292 S. W. 961.] So far as the instructions asked by defendant announced correct principles of law they were covered by those given for the State. There were no errors in the admission or exclusion of evidence. The motions for new trial and in arrest of judgment were properly overruled. The judgment is accordingly affirmed. Davis and Henwood, CC., concur.
PER CURIAM:—The foregoing opinion by HIGBEE, C., is adopted as the opinion of the court. All of the judges concur.