*1 TERM, Yol. Appellant. RODERMAN, B.
THE v. OSCAR STATE Fеbruary 23, Two, Division case, Robbery. out in set Tbe indictment 1. INDICTMENT: sufficiently charges opinion, and substance in both form full in the degree. robbery in first with the crime charging Accessory de- indictment -: Before Fact. Under an degree, robbery the first crime of others with the fendant and accessory may tried convicted as be the defendant personally fact, although when wаs not he accessory not entitled actually before the fact is An committed. accessory, charged, separately but as an tried and convicted to be 1919) may charged, (Sec. 3687, tried be S. statute under the R. principal. a convicted as Consultation, by Due Defendant: Counsel JURORS: Voir Dire: defendant, panel after the Process of Law. cоunsel for Where examination, qualified re- voir their dire on had permitted quested some defendant at consult with he be place city jail, confined would be where defendant other than challenges hours, peremptory during twelve as to his next permission opportunity jurors, the court announced jail, given defendant at to consult would be counsеl it, desired and no if made counsel an order to that effect would be objection ruling, exception but it was saved to such was made law, in, acquiesced due was no denial of there shown, (Sec. 3200, 1919) but statute R. violation of the showings, presumed contrary, it will be these record in view of duty. that the trial court its co-defendant, charged A Codefendant. TESTIMONY: cоmpetent guilty thereto, offense, pleaded wit- has who same ness for the State. Frank City Louis Circuit from St. Court. —Hon.
Appeal Landwehr, Judge.
Affirmed. appellant. Milligan J.
Verne
James
Lacy
charged,
must
fact
(1)
An
before tbe
although
accessory,
as an
SUPREME COURT OF MISSOURI,
adjudged
degree
the same
punished
principal.
Kelley’s
sec. 3687;
*2
p.
Granger,
Crim. Law
sec.
Practice,
51,
51; State v.
Stacy,
People
203Mo. 586;
11;
103
State v.
Mo.
Trim,
v.
People Campbell,
75;
39 Cal.
40
129;
v.
v.
Cal.
Muster
People, 31
99, 112;
Mich.
Ulmer v. State,
52;
14 Ind.
York,
State
N. H.
v.
37
175 State v.
;
Carver,
(a)
allega
The evidence did not
point
tions of the indictment. Authorities under
one.
)
(b
prosecuting co-indictee,
The
testimony
R.
1919,
inadmissible.
sec.
State
Reppley,
v.
Jesse Barrett, W. Attorney-General, respondent. Assistant Davis, 145 Yol. charges (1) properly the crime indictment degree. S. 1919; 3307, 3004, the first Secs. 242 Lamb, v. State State v. 'Calvert, (a) Williams, Mo. v. 183 S. W. 398, 400; State charges prop- ownership of the That the indictment erty proof possession it and the shows vari- in another not constitute a robbed, does who Wil- ance. Mo. Carroll, State v. charged (b) as a one is That liams, S. W. principal absent the time is shown to have not a variance. Commission Eddy, 199 S. W. State v. Gow, (c) An 226 S. Kramer, as a same manner before principal. fact Orrick, R. S. Sec. *3 322; v. 235 v. Ill; 307, Mo. State Car- Gow, Mo. State (2) co-defendant is of a 232 S. Evidence roll, against although there is admissible another defendant v. charge conspiracy the indictment. State in of Boatwright, Kennеdy, Mo. 182 Mo. v. 98, State 177 Sprinkle Sykes, 62, 78; 191 United v. Mo. v. 43, State ap- (3) of written confession States, Fed. proof pellant there evidence as was admissible voluntary. Moore, 160 Mo. it v. Mo. Stebbens, 171 Mo. State Jones, State guilty (4) pleaded who has A co-defendant 387, though prosecution competent has for the is a v. .Jackson, not sentenced. State Repplеy, Castro, attorney permission (5) not error refuse It is jail place prisoner other than the at a with consult ap- not if it it would avail were confined, he is ruling pellant consented the court’s here as counsel exception. 3200, saved no Sec. an indictment was 1,1920, RAILEY, October C. On charg- City of Louis, Court St. the Circuit of filed 297 Mo.—10 MISSOURI, SUPREME COURT OF August
ing appellant having, and five other men on feloniously 21, 1920, at of Louis-aforesaid, St. robbed one Herman J. Hinsman of On October $4056.10. arraigned each (cid:127)7, were 1920, various defendants pleaded guilty. they On were 11, 1920, November granted appel- each a severance. 7, On December plea plea guilty, lant withdrew his of not and entered a guilty. February plea of On 1921, withdrew guilty plea guilty. enterеd a of not second He jury on and, 24,1921, March against verdict was him: returned above entitled find the charged “We, cause, degree, in the first punishment imprison- in the indictment, and assess penitentiary years.” (20) inment for Appellant filed motions a new trial and in arrest judgment, both were overruled there- and, April judgment after, 19,1921, the court rendered pronounced upon appellant conformity sentence judgment, terms of the verdict. From the de- above appealed fendant court.
The evidence on behalf of the tends to show, morning August that on the substance, Herman Hinsman J. Norman E. em- Dewes ployed paymaster respectively and salesman for the Refrigerator Company; National that about nine о’clock morning they went in an said automobile the South- Savings ern Bank, Commercial therefrom drew *4 pay employees $4056.10', with the which of said Re- frigerator Company; plant that on their return of the' company, said at 827 Koeln in Avenue, Mis- Louis, St. just crossing, and west souri, of a railroad co-defendant gates, Flowers lowered the Mills, railroad and defendants approached Frank and Charlie Adams Hinsman and compelled Dewes, revolvers, with drawn them raise alight they their hands and automobile; from the that pocket then took from Hinsman’s and from the $310, they seat of the automobile $3746.10; and left im- that Yol. v. Roderman. money,
mediately driven in said automobile, Harry Schmelzer. having made been confession, A written identified аppellant, which shows evidence, introduced conspired advised other defendants,
that he with the had participated robbery, them to commit the afterwards through partial money the obtained a of the division appellant robbery. took testified that Police Officers making the defend- confession, after his of them, money, they had part thе a ants, obtained conspirators. among not been divided appellant planned that of the testified One defendants robbery, arranged him induced the details present participate therein; that among participated partial money division of robbery. conspirators Appellant not to have shown robbery. time
Harry he co-dеfendant, that Schmelzer, testified, robbery. appellant prior Co-de- to the never seen had Roy that Mills testified C. Adams and fendant Charles appellant’s police threatened to arrest mother officers Appellant that his testified before he made confession. robbery, participate that in the he had he did concocting, ar- Flowers as conversation with signed planning ranging He also testified it. threatening police officers confession, because not do so. if to have mother arrested caption I. case, The indictment without signature, as follows: reads grand jurors Missouri, within
“The of the State city body St. now here Louis, charged, duly their impaneled, sworn and court, present, Flowers, Thomas Roderman, oath B. Oscar Roy Harry Mills Clarence Adams, Schmelzer, Charles C. Roy day of 21st and Clifton Frank ,, . . Information. August, hundred one thousand nine twenty, aforesaid, St. Louis force at the *5 SUPREME COURT OF MISSOURI, feloniously in and one Herman arms, J. Hinsman make an assault; did and the said Herman J. Hinsman injury person, in fear an immediate then Ms and feloniously put, there did force and violence рerson money States, $4056.10,lawful of the United money personal prop- $4056.10, value of all the erty of the said Herman J. from the Hinsman, presence against and in said Her- will man J. Hinsman then there, with force and violence feloniously violently as aforesaid, take rob, steal, away, carry with the felonious intent then and there permanently deprive the use thеreof and owner against peace to convert same their own use; dignity of the State.” charges It the defendant with in the first degree, and is sufficient to both form and substance. [Secs. 3307, R. S. Huffman, (Mo.) S. W. l. c. State v. Affronti, 292 Mo. Massey, State v. l. c. 204 S. l. c. 584-5, Eddy, (Mo.) Flynn, State v. 199 S. W. l. c. 187; State S. W. State v. Calvert, 209 Mo. ) l. c. 285. Appellant accessory
II. contends “an before charged, the fаct must be ad convicted as an although cessory, adjudged Accessory degree pun- the same principal.” ished as a necessary
We do not deem it authori review the respect ties from other cited states to above matter. by appellant Kelley’s are referred We & Crim. Law p. Granger, Practice, 51, sec. Stacy, sustaining
and State v. 103 Mo. 11, his conten tion. These authorities an in hold that information or suggested by appellant dictment proper, the form would but .do decide indictment, like the charge before us, is insufficient to defendant as fact. On the hand, other con- .149 Yol. *6 respondent, herein by the indictment counsel for tended proof tend sufficient in form admit thereunder, guilty ing in the that to show accessory degree 3687, the fact. [Sec. as before first an l. and c. 1919; Reed, Fredericks S. Stacy, 333; l. v. 151; Anderson, v. 89 c. Mo. State State ; 106 l. c. 119-20 Mo. 16-17; 103 l. v. Mo. Orrick, c. State Jocoy, l. c. 232 and 404-5, v. Carroll State l. 701-2.] c. supra, reads 1919; Revised
Section Statutes follows:
“Every principal in shall be a the second who felony, degree any whó shall in the commission or any felony accessory other before the murder or be adjudged upon the be conviction, fact, shall, degree, may charged, tried, in the same and prin- punished in and same the manner, convicted the degree.” cipal in the first by Stacy, appellant, Mo. relied on
In v. 103 State legal pages discussing in effect' and the of Sec- 16 supra, we tion 3687 said: may
“It that indictment is con be contеnded the Sprague tradictory alleging killed in first shot that Stacy that incited him deceased, advised and concluding by Sprague alleging that and then act, do Stacy There and murdered deceased. killed our Under criminal contention, no merit in however. this principals accessories all distinction between code been abolished, the fact have before prin fact be indicted before can cipal. 85 29 Fredericks, sec. v. [R. State v. Davis, Ross, v. Mo. State Mo. State Payton, 90 v. Rucker, Mo. Mo. State Mo. Anderson, 312.] “According State, and other cases to these this that murder, who another to commit one advises it, advises it, does commit who whether other contemplation act does the lаw absent, OF MISSOURI, SUPREME COURT y. pleader himself. Hence, when this case avers Sprague shot and killed that, Cornelius, simply Stacy b,e him to so, advised do it, legal previous effect Sprague stated averments allegations Stacy did kill and murder ” supra.] Hopper, Cornelius. [State by appellant’s
It is contended counsel ut- that the dealing terances this court in above cases, subject, this are mere dicta. It true that some subject of the Missouri this cases where was considered, necessary pass it was not ques- for the court to subject in others tion, but, relied on un- State, *7 fairly der consideration here was the before court, determined as an issue in the case. We do it not deem necessary any to enter into' extended discussion of the subject, opinion, authorities guage as, on this our lan- the of Section plain 3687,Revised too Statutes controversy. to admit of serious In order, that .however, put hereby matter at rest, affirm the lan- we guage respect alleged of this court to said dicta, and hold that the under indictment in this case defendant properly chаrged and tried although personally present fact, the was not when the robbery actually occurred. by appellant
III. It is insisted that the “failure of give upon °nrt defendant’s re counsel, Consultation privilege quest, consulting the with the client. witii jurors defendant as to who were challenged, awas denial of due of law.” transcript appears It from that the respect at the occurred trial to this matter: thirty- “Thereupon day March, said 22nd duly jurors four summoned into were called box duly by respec- their were voir dire examined tive counsel, at the conclusion said examination the following proceedings to-wit: had, Lacy: upon ap- “Mr. the record show Let Vol.
State attorney plication be al- court to to the defendant’s de- and communication to have access lowed of the voir dire examination fendant close purpose receiving the benefit of the defend- for the reference, knowledge the ac- ant’s advice and pertaining quaintance to the several other matters jurors com- to allow said examined, the court refused jail' city in the other than a consultation munication permit visiting counsel time hours will not at this deprives counsel defendant, to have access to the opportunity until defendant to communicate with morning. defendant, nine o’clock to-morrow Wherefore excepts ruling through court counsel,. exception. and saves on the matter I have ruled
, “The Court: yet. 22nd. afternoon of March It is now 4:45' of their in which make hours in this case takes Counsel per- given challenges, peremptory counsel will be given, opportunity de- ordered if so mission and this case at to consult with sires, jail during any the twelve this time until time from hours. order. Tour Lacy : I ask for Honor, Then,
“[Mr. duly admonishing “Thereupon after court, not,be in court their conduct while should *8 adjourned duly a. m. nine until ordered court session, day, at to-wit, March day parties being heretofore hour and all following proceedings duly and the was convened court to-wit: had, try “Thereupon the twelve selected out duly heretofore set the indictment cause were sworn, Attorney, by the Assistant Circuit read to them Attorney made his statement the Assistant Circuit expected on behalf the' evidence what he by prove, counsel, his defendant, and the the State right having the fol- statement, make a his reserved thereupon lowing proceedings were had.” MISSOURI, SUPREME COURT OF ap- by Section 3200,Revised Statutes relied on pellant, reads as follows: jail, persons any
“All arrested and confined peace by any place or other of confinement calaboose officer, every . so . . such while shall, permitted during at all reasonable confined, hours day persons to consult with counsel or other be- any person pro- half; and or officerwho shall violate the by permit refusing section, visions of this ... persоns, him to see and consult counsel or other ’’ . . . shall deemed a misdemeanor. complaint ruling above is without merit. The acquiesced of the court appellant, and no ob exception jection ruling. made, as to saved, said nothing There indicate record to that the trial to defendant court denied due law. theOn contrary, presumed аforesaid, under facts it will be duty. trial court did [State McNeal, its (Mo.) City l. c. cited; W. cases B. F. G. Assn. H. Zollmann v. G. P. l. S. W. c. 916.] Co., improp
IV. It is claimed that he was erly testimony of Thomas Flowers, charged ap a co-defendant same offense. It pears pleaded guilty from the record Flowers had
before he was examined a as witness. competent He was, therefore, a m case. [State v. Jackson, 106 Mo. Competent Co-Defendant:Witness forState. l. c. v. Minor, c. 117 Mo. l. Wigger, 305-6; 196 Mo. l. c. v. Shelton, Reppley, l. 223 Mo. 213 c. l. c. l. c. 479.] length pre questions V. have We considered ‘,Points by appellant sented under his and Authorities.” carefully We have likewise read record and briefs respective counsel, find error the case of *9 Yol. 297] Hine.
Turner v. instructions complain. can The which legally de are as by the court favorable given Errors No expect. any legal right had fendant all the that was instructed as to law fully their consideration merits necessary for a e s e. hold, received conclusion, that defendant In we has impartial a fair trial and has properly evidence; Thе below ac judgment is substantial concur. Higbee Davis, CC., affirmed. cordingly opinion foregoing PER CURIAM: —The Railby, All court. opinion adopted as the C., hereby is concur. judges IRENE TURNER T. Appellants, et LEWIS HINE al.,
et al. Two, February 23, Division Bight Bespondent. Assignment by A APPEAL: Maintain Suit: plaintiffs father the trial court that of certain contention incompetent non- of his their next friend because to аct as judgment appeal is not for consideration on where residence they appeal. did not defendants Although EQUITABLE an- ACTION: No Affirmative Belief. law, up equitable if no af- action at swer sets defense cannot be suit firmative relief equity. asked case classified EQUITABLE Direction CONVERSION: Devise Beal Estate: Equitable personal property to Sell. conversion of real estate into carry legal fiction, protect legatees invented to will is testator, principle intention of the and is founded out the on the equity, regards not the court of the substance and that a instrument, consider done form of an will that directed mere done, nothing ought having been has intervened which proper applied performance; prevent a and in a case it will be at law. to an action