State v. West

157 Mo. 309 | Mo. | 1900

GANTT, P. J.

The defendant with Eli T. Stubble-field was indicted at the February term, 1899, of the Pettis Circuit Court. He was duly arraigned and pleaded “not guilty.” A severance was granted and each tried separately. Defendant was convicted and sentenced to the penitentiary for ten years. He appeals.

The indictment sought to charge an offense under the act of April 2, 1895 (Laws of Missouri, 1895, p. 160), entitled “An Act in relation to the crime of train robbing and to provide a penalty therefor.”

The indictment is in these words:

“In the circuit court of Pettis county, Missouri, April term, 1899.

“State of Missouri, county of Pettis, ss.

“The grand jurors for the State of Missouri, duly impaneled, sworn and charged to inquire within and for the body of the county of Pettis and State aforesaid, upon their oat-b present and charge that heretofore, to-wit, on the twenty-ninth clay of November, 1898, at the county of Pettis and State of Missouri, James L. West and Eli J. Stubble-field, unlawfully and feloniously did stop, detain and arrest the progress of a certain railway passenger and' express train, the property of the Missouri Pacific Railway Company, a corporation- duly organized and existing under the laws of the State of Missouri, by then and there giving to the engineer of said train a danger signal by swinging a lighted lantern across the track of said railway in front o.f said train, which said railway train was then and there upon and moving along the railroad track and railway of the said Missouri Pacific Railway Company within said county of Pettis and State of Missouri, with the felonious intent then and there to commit robbery thereon, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State.”

The evidence tended to prove the following facts: The Missouri Pacific Railway Company is a railroad corporation •duly organized under the laws of Missouri, and on the 29th day of November, 1898, and for a long time prior thereto and ever since owned and operated a railroad from Sedalia, in Pettis county, to Nansas City, in Jackson county, known us the Lexington branch of the Missouri Pacific Railway and ran its trains over said branch. Georgetown, Hughesville and Houstonia are stations on said railroad in Pettis county.

On the night of November 29, 1898, the regular passenger train from Kansas City to Sedalia was stopped a short distance east of Hughesville, in Pettis county, by a danger giVnal; the waving of a white light across the railroad track. The lantern was waved by a masked man who held the lantern in one hand and a revolver in the other. The division superintendent, Mr. Hopkins, had been apprised that an attempt to rob the train would occur that night and in pursu-anee of tbis information bad caused a guard to be placed on tbe train. "When tbe danger signal was displayed tbe engineer of tbe train responded with two short blasts and immediately sbut off tbe steam and applied tbe air to tbe brakes and stopped tbe train. As tbe engine approached, tbe man who was waving tbe lantern sprang to tbe left side of tbe track. One of tbe guards shot at him and be shot at tbe guards on tbe engine cab almost simultaneously.

As soon as tbe train stopped, tbe guards jumped off and pursued tbe parties who stopped tbe train. Tbe defendant "West was arrested in tbe adjoining field.

Thomas Furlong, who was in charge of tbe detectives, testified that be saw a man standing upon tbe bank of tbe cut above tbe place where tbe man waved tbe lantern was standing, and tbis man also was shooting at tbe train. Tbis man ran across tbe field and tbe guards followed and arrested him. He identified tbe prisoner as James West, tbe defendant. When arrested be bad two handkerchiefs around bis neck, a sack in bis overcoat pocket and was armed with a revolver and bad a number of cartridges. Tbe prisoner was brought to tbe train by tbe guards and laid on tbe floor of tbe baggage car, and was identified by Barnett, one of tbe guards. While lying there be was approached by Furlong and asked if be knew him. Tbe prisoner answered, “You are DeLong aren’t you?” and then said “How did I get here?” He was brought to Sedalia on tbe train. Having beard that tbe defendant was feigning drunkenness, Mr. Hopkins and Mr. Manley went to tbe prisoner and bent over bbn, close to bis face to ascertain if be bad been drinking, but they could discover no smell of liquor on him.

Tbe other robber escaped from tbe scene of tbe “bold up,” but about half past twelve o’clock that night was arrested by tbe officers in Sedalia and proved to be Stubble-field. He was wounded in tbe right elbow and bis clothing was shot. He was disguised.

E. H. Adams testified that be bad lived in Sedaba for 17 years. Had been employed by tbe Missouri Pacific Eail-way as fireman and engineer for 15 and 16 years, but at tbe time of tbe “hold up” was not working for tbe company but bad an office in Sedaba. West and Stubblefield were both old employees of tbe Missouri Pacific. West tbe defendant, bad been employed as engineer for 8 or 10 years. Sometime in tbe latter part of June or first of July, 1898, be came to tbe office of witness Adams and said be was in need of money and intended to bold up a Missouri Pacific train on tbe Lexington branch. He said be bad men who would help him — Eh' Stubblefield, Joseph West and Eobert Cunningham. Later on Joe West was at a conference and Stubble-field was there on two different occasions. In tbe latter part of October, West, tbe defendant, and Stubblefield were in witness’s office over Bank of Commerce building in Se-daba and they then said they bad made their arrangement and were going to rob that train. They finally agreed to do-it on tbe night of November 25th. Tbe arrangement was that James West, Stubblefield, Cunningham and Joe West were to meet witness Adams at tbe Grand avenue and Main street crossing and ride out to tbe place for stopping tbe train in Adams’s surrey. Adams was to take them out and come back. After robbing tbe train they were to cut tbe engine off and ride back to Sedaba on that.

For some reason tbe first appointment for tbe 25th failed and they then set tbe 29th of November as tbe time. Tbe object in riding out was to avoid being trailed by blood bounds. They agreed they would rob train No. 194 on Lexington branch. This train was due in Sedaba at 10:05 p. m. They agreed they would stop tbe train, compel tbe engineer and fireman to go with them into tbe express car and make tbe messenger open bis safe and if-be didn’t they would kill him. Tbe defendant said to witness tbe reason they could not go tbe first nigbt was tbat Cunningbani’s child was very sick but tbe train would be beld up on Tuesday tbe 29th of November. Witness was to meet them at 7:30 at Grand avenue and take them out to Georgetown. At tbat bour be went in bis surrey and met tbe defendant and Stubblefield at tbe Grand avenue crossing. They bad a lantern, mask, revolvers and sack. Witness drove them in a surrey to a point 150 yards from tbe railroad crossing west of Georgetown, and let them out and then drove borne. Tbe spoils were to be divided between Adams, Stubblefield and West, tbe defendant. This witness identified tbe handkerchiefs which were found on defendant and tbe lantern and sacks.

Grimshaw, tbe express messenger, testified to seeing tbe lantern waved. He beard tbe shots at tbe engine and saw a man on tbe bank opposite bis car. Tbe moon was shining and be saw this man run across tbe field, and fall down and called to tbe guards and they pursued him and arrested bim and brought bim back to tbe train. He recognized tbe defendant as tbe man tbe guards brought back to tbe train, and who was identified tbat nigbt as Jim West. Other witnesses corroborated these witnesses as to tbe stopping of tbe train and tbe identification of tbe prisoner and bis clothing.

Various errors are assigned for a reversal of tbe judgment and they will be considered. •

I. It is insisted tbat tbe indictment is insufficient in that it fails to set out what tbe defendant intended to do and does not charge defendant with intent to take by force or against tbe will and without tbe consent tbe property o| some person other than defendant and does not charge tbe offense with sufficient particularity.

This is a statutory crime and by reference to tbe act it will be seen tbat it is made a felony for “any person in any way.to stop, detain, or arrest tbe progress of any train, car, engine, tender or coach with tbe intent to commit robbery thereon.” [Laws 1895, p. 160.] The statute itself individuates the elements of the crime and when this is so it is sufficient to charge the offense in the language of the statute. In this case the indictment states every fact descriptive of the offense as defined in the statute and is sufficient. [State v. Batson, 31 Mo. 343; State v. Addcock, 65 Mo. 590; State v. Van Wye, 136 Mo. 227.]

But the indictment is good according to the analogies of criminal pleading. The offense under the statute is not robbery but stopping a train with intent to commit robbery thereon. It may be likened to a charge of forgery with intent to defraud. In such a case it is not necessary to charge an intent to defraud a particular person. So here the offense denounced by the statute is made out by proof that the defendant feloniously stopped the train with intent to rob and it is not necessary to allege the intent to rob a particular person or corporation, nor to charge a robbery in fact. [State v. Phillips, 78 Mo. 49; State v. Yerger, 86 Mo. 33; State v. Elora, 109 Mo. 293; State v. Rowlen, 114 Mo. 626.]

II. It is urged that the court committed error in not instructing upon all questions of law arising in the case;

The instructions given and refused will be considered but it is sufficient on the point now under consideration to say that outside of the special requests prayed by defendant no request was made for other instructions and no exception saved to a refusal to instruct on all questions of law. [State v. Cantlin, 118 Mo. loc. cit. 111.] Under this head it is, insisted that the court should have informed the jury what facts would have established criminal intent. The only intent required in connection with the stopping of the train was an intent to commit robbery thereon, and this the court told the jury. To have commented on the facts showing this intent Avould have been error. It was the province of the jury to find tbe intent or want of such intent from tbe facts and circumstances in evidence. Tbis point is not well taken.

Under tbis same general assignment error is predicated on a failure to instruct on intoxication as affecting intent. Tbe court of its own motion gave tbe following instructions:

“3. Tbe court instructs tbe jury that drunkenness, in any degree, can not justify, excuse or mitigate tbe commission of a crime, and if tbe jury believe from tbe evidence that ■;tbe defendant did, with one Eli I. Stubblefield, stop, detain .and arrest tbe progress of tbe Lexington branch train on tbe Missouri Pacific railroad as described and defined in instruction number one, on bebalf of tbe State, with intent to commit robbery tbereon, tbey should find tbe defendant, James L. West, guilty; and tbe fact that defendant may have been drunk to any degree at tbe time can not be taken into consideration by the jury in making up their verdict.

“4. Tbe court instructs tbe jury that in making up their verdict, tbey will entirely disregard all tbe testimony with reference to tbe defendant being drunk, and that drunkenness can not be pleaded in excuse, mitigation or defense of any crime.”

Tbe ixnbroken line of decisions in tbis State is that voluntary intoxication at tbe time tbe criminal act is committed constitutes no excuse therefor. [State v. Harlow, 21 Mo. 446; State v. Dearing, 65 Mo. 530; State v. Ramsey, 82 Mo. 133; State v. Duestrow, 137 Mo. 44; State v. Kindred, 148 Mo. loc. cit. 286.] There was no error in giving these instructions or refusing instruction numbered 23 prayed by defendant, as it is apparent tbe latter referred to defendant’s condition as one of intoxication.

III. There is no merit in tbe objection to tbe first instruction that it assumes a white light is a danger signal. It was distinctly left to tbe jury to say whether it was a danger signal.

IY. Tbe most important question arising on tbis record is wbat is denominated tbe doctrine of consent as a defense. Is tbe case at bar one in wbicb tbis doctrine can be utilized as a defense ? Tbe doctrine may be epitomized thus: Private persons can not license crime and it is no excuse tbat tbe evil-doer bas any one’s consent thereto, but to tbis general principle there are exceptions.

“There are acts wbicb tbe law mates criminal when, and because done without consent, tbe doing of which with consent is not criminal.” [1 Bishop’s New Orim. Law, sec. 258. J It depends on tbe character of each particular offense whether or not it exists when tbe act is consented to.

A man may give away bis property; therefore, another who takes it by bis permission does not commit larceny. So likewise as robbery is a compound larceny, tbat is to say, a larceny committed by violence or putting in fear, it falls within the category of those acts which if done with tbe •consent of the owner of the property is not legally criminal.

The contention of counsel for defendant in tbis case is three fold: First, tbat tbe train on tbe Missouri Pacific on •the night of November 29, 1898, was not stopped by means of tbe danger signal with tbe felonious purpose of committing robbery "thereon, but was stopped by tbe pre-arrangement of the trainmen for the purpose of apprehending defendant and his associates at the suggestion of the superin-fendent of tbe railroad; second, tbat tbe train was stopped by a signal given by a party other than tbis defendant and tbat party was one taken to tbe scene at tbe suggestion of and under an understanding with tbe superintendent whose acts in tbat behalf can not be imputed to defendant; third, tbat although the signal given to stop tbe train was a danger ■signal and was tbe means of stopping tbe train, and tbe act of a party whose acts are imputed to tbis defendant, still tbe conduct of the superintendent of tbe railroad took away tbe criminal quality of tbe act and no crime bas been committed.

Eirst. Recurring now to tbe first of these propositions, was tbe train waylaid and stopped at tbe suggestion of tbe superintendent or was it brought about by tbe independent action of tbe defendant and bis associate Stubblefield ? Tbe jury were required to find and by their verdict found that tbe train was in fact stopped by tbe danger signal given by Stubblefield in .furtherance of a conspiracy entered into between Stubblefield and defendant, who was present, armed and prepared to assist in robbing said train. Counsel for defendant base their insistence upon tbe assertion, that tbe superintendent “suggested” to tbe witness Adams that be accompany defendant and bis co-defendant to tbe place of robbery., This is a question of fact. Mr. Hopkins, tbe superintendent, testified that Adams approached him, telling him that tbe arrangement bad been made by which tbe robbery was to be effected, and that it bad already been agreed that Adams should take tbe defendant and bis co-defendant from Sedaba to tbe appointed place on tbe day selected; that this information came unsolicited by tbe superintendent, and to this Mr. Hopkins merely assented that be supposed it would be all right for him (Adams) to do as be bad agreed. Taking tbe evidence altogether we are unable to find any agreement by tbe company that tbe crime should be committed. On tbe contrary tbe evidence is ample that as soon as tbe information was imparted Mr. Hopkins at once took steps to prevent tbe contemplated robbery. He did nothing to aid in tbe crime. He merely took steps to prevent tbe robbery and apprehend tbe would-be robbers. No special train was sent out to be robbed. Tbe regular train on tbe regular schedule time was sent out as usual, but protected by guards to prevent tbe consummation of tbe conspiracy. He did this without the knowledge of defendants and they acted entirely on their own responsibility.

The attempt to show that the engineer did not act upon his printed instructions to stop his train when confronted ■with a danger signal was negatived by the engineer who swore he stopped his train on his own responsibility at the appearance of the signal and not at the suggestion of Eurlong, the detective, and in this he was fully corroborated by Eurlong, who testified he had no authority over the engineer and that the latter had already shut off the steam, answered the signal and applied the air to the brakes before Eurlong asked him to stop to let him off.

It must be held in view of the verdict that the train was stopped by the danger signal, and not by Furlong, and that the signal was given by Stubblefield. The mere fact that the train in stopping passed the man who gave the signal a few yards, does not contradict the main fact that it was stopped by the signal, and there is no evidence that the engineer stopped the train under the direction of Mr. Hopkins, or at his suggestion.

Second. As to the proposition that the train was stopped by some person other than Stubblefield who was clearly shown to be a co-conspirator with defendant, there is no proof whatever. The utterly incredible story of the defendant does not support the theory that it was Adams who gave the signal. According to defendant he was so stupefied that he did not know how he came to the scene of the robbery, and had abandoned the enterprise,,and had left before the train was stopped, hence even if credited he does not place the giving of the signal on Adams.

Third. We are thus brought to the third and last proposition, to-wit, conceding the train was stopped by the danger signal and that signal was given by his co-conspirator, still as it was done by tbe consent of Hopkins, tbe superintendent, no crime was committed. Tbis doctrine was asserted in instructions numbered 14, 16, 17, 18, 21, 24 and 26, asked by defendant and refused by tbe court.

Tbe rule invoked by defendant is expressed by Bishop in tbe 5tb edition of bis work on Criminal Law. Section 262, as follows: “Tbe cases of greatest difficulty are those in wbicb one suspecting crime in another, lays a plan to entrap him; consequently, even if there is a consent it is not within the knowledge of him who does tbe act. Here we see from principles already discussed, that, supposing tbe consent really to exist and tbe case to be one in wbicb on general doctrines tbe consent will not take away tbe criminal quality of tbe act, there is no legal crime committed, though tbe doers of tbe act did not know of tbe existence of tbe circumstances which prevented the criminal quality attaching.” [2 Archbold’s Crim. Pr. & Pl., p. 1181; 2 Russell on Crimes, p. 190; 3 Chitty Crim. Law, p. 925; 1 Whart. Crim. Law (10 Ed.), sec. 914.] This doctrine is well illustrated by tbe decisions of tbe courts. Thus it was held in Connor v. People, 18 Col. 373, that the crime of larceny is not committed when tbe property is taken .with tbe consent of tbe owner, even though such consent was given for tbe purpose of entrapping the person suspected, and tbe doer of tbe act did not know of the existence of tbe circumstances wbicb prevented tbe criminal quality attaching. In that case tbe detectives in their zeal or under a mistaken sense of duty, suggested and instigated the commission of tbe crime in order to arrest tbe offender in tbe act, and it was justly rebuked by tbe court, and to tbe same effect is Saunders v. People, 38 Mich. 218.

But on tbe other band it is equally well-settled law that where two or more persons conspire to commit an offense, and tbe person against whom or whose property tbe offense is premeditated becomes apprised of tbeir intention and arranges to have tbem apprehended in the act, he does not thereby consent to their conduct, or furnish them any excuse.

In Thompson v. State, 18 Indiana 386 (81 Amer. Dec. 364) the evidence showed that the owner and clerk of a store into which the defendants entered, were apprised of the intended crime by one Erost who was pretending to act with them as a confederate. Armed men were placed inside. The defendants entered the store through an outside window and inner door that were opened by them. They were arrested in the store. The proprietor was close at hand waiting for their entrance. The evidence conflicted. Erost stated that Thompson did the breaking; French, that Erost did it. The court was asked to instruct “that if the breaking and entering the house was done with the knowledge, procurement, and consent of the owner, you ought to find defendant not guilty,” which it refused. The ruling was affirmed, the Supreme Court saying: “In the cases at bar, there is nothing showing that the owner of the property consented to the commission of the crime, unless his remaining passive, •so far as their contemplated proceedings were concerned, and failing to take any measures to prevent the breaking and entering, should receive that construction. The witness, Erost, was not his servant; he made no agreement with him by which he was to bring the defendants there. He simply arranged, and let Erost know that he had done so, for the arrest of the men, fif they did break into and rob the store.’ He did not furnish the means by which they might enter. Their entrance was by breaking. There was, therefore, no evidence tending to prove that the breaking and entering were by the procurement of the owner; and for that reason, the instruction asked was rightfully refused.”

In this ease not only did the superintendent make no agreement that his train should be robbed, but he did not remain passive. As soon as tbe robbers began their work,, armed guards opened fire on them. It is apparent, we think,, that Adams was not the agent of the railroad company. He was a mere informer, so far as the company was concerned, and however much we may condemn his character, the company had a perfect right to avail itself of the information he gave without being responsible for his acts. "We are clear that the facts of this case show that Mr. Hopkins, the superintendent, did not originate the scheme to rob the train; that he did not suggest the commission of the Crime, either personally, or by his agent or servant, and the facts of this case wholly fail to bring it within the rule of law so earnestly pressed on our attention by the learned counsel for defendant.

But there is another view presented by the Attorney-General. The act under which this prosecution is maintained, was enacted, not alone for the railroad company whose trains might be stopped, but it was for the protection as well of the passengers thereon, their lives and property. As to them it can certainly be said that the superintendent of the company could not consent to their being robbed. It was not in, his power to deprive them of the protection of this statute. No error was committed in refusing the instructions to which we have already referred by number.

Y. The defendant asked thirty-six instructions. The-court gave him twelve, and refused twenty-four. The practice of offering such a mass of instructions is very reprehensible. The issues in this case were exceedingly simple, and the proposition urged by counsel could have been stated in a very small compass. Outside of the stereotyped instructions as to-reasonable doubt, good character, the credibility of witnesses, and the presumption of innocence, four instructions would, have covered every principle of law arising in the case.

Among others, the court gave the following for defendant:

“11. The court instructs the jury that to flag and stop a train is not in itself unlawful unless coupled by evidence of an intent to commit the specific crime charged in the indictment.

“12. The court instructs the jury that if they believe from the evidence that after arriving at the scene of the alleged intended robbery, the defendant refused to participate in said' alleged intended robbery, and so told witness E. II. Adams in the presence of the two masked men, and ■said to them to put out the light, and said defendant did abandon said alleged intended robbery and the right of way of said railway company, before any act was done calculated to stop, detain or arrest the progress of said railway passenger and express train, as alleged in the indictment, and did not participate in the stopping, detaining and arresting the progress of said railway train, as alleged in the indictment, then their verdict will be not guilty.”

We have read all the instructions asked by defendant and discover no error in the action of the court in refusing those not given. Indeed we think the court was far too lenient in repeating the same principle over and over at the request of defendant.

We have neither the time nor inclination to enter upon a critical discussion of each of the refused instructions. Those given for the State and defendant fully covered every issue before the jury, and it was no error to refuse others even if they contained some correct statement of the law abstractly considered.

We have carefully gone through the record as to the other assignments and find no reversible error in any of them.

Upon the whole, the case was well tried and the jury having found the defendant guilty upon evidence amply sufficient to support their verdict, the judgment must be and. is affirmed.

Sherwood and Burgess, JJ., concur.