The defendant .was convicted in the criminal court of Jackson county of robbery in the first degree and sentenced to ten years’ imprisonment in the penitentiary.
The information is in two counts, as follows:
“Now comes Roland Hughes, prosecuting attorney for the State of Missouri, in and for the body of the county of Jackson, and upon his official oath informs thе court that O. Montgomery alias Prank Gale, whose Christian name in full is unknown to said prosecuting attorney, late of tbe county of Jackson aforesaid, on the 4th day of January, 1903, at the county of Jackson, State of Missouri, in and upon one William I. Mills, unlawfully and feloniously, did make an assault, and twenty-two dollars in lawful money of the United States of the value of twenty-two dollars, the money and property of said William I. Mills, and in the presence of the said William I. Mills and against the will of said William I. Mills, then and there by putting said William I. Mills in fear of immediate injury to his person, feloniously did rob, steal, take and carry away; against the said peace and dignity of the State.
“And thе prosecuting attorney aforesaid, upon his oath aforesaid, further informs the court that O. Montgomery, alias . Prank Gale, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, at the county of Jackson and State of Missouri, on the 4th day of January, 1903, in and upon one William I. Mills, unlawfully аnd feloniously did make an assault, and twenty-two dollars in lawful money of the United States of the value of twenty-two dollars, the money of T. J. Radford, which said money was then and there in the care, custody and control of the said William I. Mills as the clerk of the said T. J. Radford, and in the presence of the said William I. Mills, then and there being and against the will of the said William I. Mills, then and there by putting the said*22 William I. Mills in fear of immediate injury to his person, .feloniously 'did rob, steal, take and carry away; against the peace and dignity of the State. ’ ’
At the trial, the State was required to elect, and the second count was dismissed.
The facts in evidence were these:
On the 4th day of January, 1903, about 10:15 p. m., the defendant еntered the drugstore of Mr. T. J. Eadford, located at the corner of Ninth and Locust streets in Kansas City, Missouri. Mr. Eadford was at that time at his home in the suburbs of the city, and William I. Mills^his clerk, was in charge of the store. The defendant walked in, pointed a revolver at Mills, and commanded him to throw up his hands. The clerk complied with the demand, while defendant took about $22 in money from the cash register of the store. Putting the money in his pocket, defendant backed out of the store and escaped. Two days afterwards he was arrested by a detective and identified by Mills. The evidence of the State further showed that the money alleged to have been táken was not the property of said Mills, as charged in the information, but was the property of his employer, Mr. Eadford; that Mills was a clerk in the store and had charge of the store and the money in the register, with authority to put the money received on sales therein and to take cash therefrom to make change and had no other interest in the money taken or in the store, and was not under the terms of his employment required to make good the loss of this money.
Mills testified:
“Q. Did Mr. Eadford hold you responsible for that money afer it was gone? A. No, sir; he didn’t.
“Q. You were merely clerking there? A. Yes, sir.
“Q. You have no interest in that store? A. None whatever.
*23 “Q. The money belonged to Mr. Radford? A. Yes, sir.”
The defendant introduced no evidence, hut bottoms his appeal upon the fact of thе variance between the allegation in the information that the money taken was the property of Mills, and the proof that it belonged, not to Mills, but to his employer, Radford.
The court refused to give the following instruction offered by the defendant, to which action the defendant excepted at the time:
‘ ‘ The court instructs the jury that if they find from the evidence in this case that the money alleged to have been stolen was not the property of the said William I. Mills but the property of T. J. Radford and that he had no specific property therein, then they will acquit the defendant of the charge of robbery as alleged in said informаtion. ’ ’
As the law of this State had been adjudged prior to March 24,1903 (Laws 1903, p. 162), to constitute the crime of robbery the taking must he laid in the indictment and proven on the trial to be from the person or in the presence of the owner; either the true owner, or one having such a special property therein as a bаilee, pawnee, carrier or the like, as would enable him or her to maintain an action therefor if taken out of his or her custody- [State v. Lawler,
And it was expressly ruled in the case last cited that a clerk, such as' Mills was in this case, had no such special property in the goods as would authorize the ownеrship of the property to be laid in him.
Since the enactment of the statute of March 24, 1903, the offense can be charged for the taking from the wife, servant, clerk or agent.
We are again confronted with the question whether the evidence in this case is sufficient to sustain the charge of robbery.
The defendant relies upon State v. Morledge, 164
In an exhaustive decision by Judge Sherwood in Lawler’s case as.to the essentials of a good indictment for'robbery, the conclusion was reached that the money or goods must be laid in the general or special owner, and it was said it was sufficient that they be laid in a bailee, pawnee, carrier or the like. [State v. Moore,
The question presented by this record and in the Morledge case is whether a clerk left in charge of, and entrusted with the care of his employer’s cash, with authority to sell his goods and make change out of the drawer, is not a person in whom the ownership of such money may be laid as against а robber?
Certainly if he is over sixteen years of age he may be convicted of embezzlement of such money if he fraudulently converts it to his own use without the con
Is it the law that if the president or casMer of a bank should be temporarily absent from the bank, a robber may with impunity enter the bаnk and present a .revolver or gun at the clerks left in charge and take all the money of the bank and escape punishment for robbery? Or, to state it differently, if a gentleman confide to his friend his watch for convenience, and after they part a robber places his revolver at the friend’s head and by putting him in fеar takes the watch, there can be no robbery because the real owner was not present, and was not put in fear and as the friend was not a bailee for hire and makes no claim of any property rights other than his possession, therefore, the ownership can not be laid in him?
The question is one of much practical moment.
Mr. Mills bore a contraсt relation to Mr. Radford, by which, in consideration of Ms wages as clerk, the law, in the absence of an express agreement, implied a promise on Ms part to exercise care and prudence in the management of Mr. Radford’s store in the course of his employment.. Certainly the law imposed upon him the obligation of collecting the price of the goods, he sold and of accounting for the same. He was for that purpose entrusted with the cash register and by virtue of his employment he was authorized to take money out of the register to make change when he sold an article, and was required to plаce Ms receipts in the register. He was an agent for hire, and Mr. Radford had, by the course of business adopted, delivered to him the possession of the cash in the register in law as effectually as
Even bailees without reward have an interest sufficient to enable them to sue tortfeasors and to maintain trover against all strangers to the bailment who wrongfully invade their possession. Possession is prima facie evidence of right and the party who seeks to dispossess should show a better title, and moreover the possessor sustains a responsibility to the true owner.
The language of the statute defining robbery in the first degree is, “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, shall be adjudged guilty of robbery in the first degree. ’ ’ [Sec. 1893, R. S. 1899.]
The weight of the argument that the person robbed must have a general or special property in himself and that possession alone is not sufficient lies in the words of the statute “taking the property of another from his possession.”
This identical question arose in Brooks v. People,
The learned judge pointed out that the elementary common law writers generally did not insert in their definition of this crime that thе property should belong
The same question again arose on a statute in the same words in State v. Adams,
In State v. Lawler, 130 Mo. lоc. cit. 374, it was said: “There is no doubt but that goods may be laid to be either in the general owner or in a special owner with the like result of conviction where the evidence corresponds with allegation. Thus they may be laid to be in a bailee, pawnee, carrier or the like.”
We find on examination the foregoing is a sub
Mills, then, being lawfully in possession by virtue of his employment as clerk for Mr. Radford of the money in the cash register, had a sufficient ownership thereof as against the defendant to justify the laying of said money in him for the purposes of this рrosecution against the defendant who robbed him of the same and a sufficient ownership to meet the requirement of the statute that said money should be laid as his.
The information properly charged the robbery of Mills and laid the goods in him; otherwise, there can be no robbery in such circumstances.
Upon a reconsideration we are satisfied that the possession of Mr. Mills as the clerk in charge of the store with the implied obligation of exercising ordinary care of his employer’s goods and property was such as authorized the money to be laid in him and that our opinion in State v. Morledge ought no longer to be follоwed as the law of this State and that so much of State v. Lawler as holds that the possession of a wife or servant in circumstances such as shown by the record in this ease is not sufficient in a prosecution for robbery to justify the laying of the goods in them should also be overruled.
The information .is not verified, but no objection was taken to it on that account and the failure was waived.
The result is that the judgment of the criminal court must be and is affirmed.