author: FARIS, J.

text:
    THE STATE v. HOWELL MACE, Appellant.
    Division Two,
    November 24, 1914.
    1. INFORMATION: Felonious Intent. An information which, after alleging the assault was feloniously made with a shotgun, and that the shooting and striking were done feloniously, states that the assault and shooting were done-“with the intent then and there him the said Herod Williams on purpose and of his malice aforethought feloniously to kill and murder,” sufficiently charges felonious intent to kill by means of a firearm.
    2. -: Shotgun: Judicial Knowledge. The courts judicially notice the dangerous and deadly nature of a shotgun and other like firearms. But that is not true of a rock, club and some other weapons.
    .3. JUROR: Challenge. An attempted challenge of a venireman in his voir dire examination, in the words, “The defendant’s counsel object to the juror; challenge him for cause,” is the same as no challenge at all. A challenge for cause must be specific and point out the ground or reason for the challenge.
    4. -:--: Unnecessary Hazard. But while such an attempted challenge cannot be considered on appeal, it is observed that courts and prosecuting attorneys, without reason, often do the unwise and unnecessary thing of hazarding a prosecution upon the retention of a juror whose competency is uncertain, when it is always possible, usually from bystanders, to secure jurors about whose fairness and impartiality there can be no question.
    5. -: Prior Opinion: Directed to Crime and Not to Defendant. An expression by a trial juror indicating he entertained strong prejudice against the crime committed, by whomsoever committed, but not directed towards defendant, does not disqualify him, if upon his voir dire he testifies he has formed no opinion of defendant’s guilt or innocence and will give him a fair trial. So that where a witness, by affidavit in support of a motion for a new trial, swore that she heard one of the trial jurors say “a fellow like that ought to be sent to the penitentiary,” and the juror, in a counter affidavit, ' swore that he was at the store at the time named, that a message came over the telephone that the prosecuting witness was fatally wounded and his wife was dying, that it' was reported that the shooting had been done by defendant’s father, that other persons present expressed the opinion that a person who would commit an act such as was detailed over the' telephone should be in the penitentiary, but that he had no recollection of having made any such remark himself and if he did it was based on the telephone report, and that at no time or place prior to the trial had he said defendant was guilty, but that1 whatever he may have said was to the effect that if a person was guilty of such an act he should be in the penitentiary, and said juror on his voir dire had sworn he had formed no opinion, and the trial court, after hearing the affidavits, overruled the motion for a new trial, it will not be held that the juror possessed such bias or prejudice as' precluded him from giving defendant a fair trial, there being doubt as to whether the remark was made at all, and doubt if made whether it referred to the defendant or pertained to a general but commendable detestation of crime, and in such case the rule is that the doubt should be resolved in favor of the ruling of the trial court.
    Appeal from Miller Circuit Court. — Hon. J. G. Slate, Judge.
    Affirmed.

      Barney Reed and Sid G. Roach for appellant.
    (1) Tbe court erred in overruling defendant’s motion for new trial and of defendant’s motion to exclude Juror J. S. Lumpkin'from the panel. R. S. 1909, sec. 7283. The evidence given by Juror J. S. Lumpkin on his voir dire examination shows that he had a fixed opinion as to the guilt or innocence of the defendant and that his opinion was such as to require evidence to overcome it and as to influence his judgment, and if so, he was not a qualified juror. Spangler v. Kite, 47 Mo. App. 233; Theobald v. Transit Co., 191 Mo. 395. When an opinion is formed on newspaper reports alone, in order to qualify as a juror in his voir dire examination it should be shown and clearly appear from the record that such juror would fairly and impartially try the case and render a verdict based upon the evidence produced at the trial alone, notwithstanding such opinion. State v. Rasco, 239 Mo. 535; State v. Bobbitt, 215 Mo. 10. (2) It is clear that Peach Wall was incompetent to serve as a juror in the trial of this case; he had, previous to the trial, formed and expressed his opinion in a pronounced manner among his neighbors, and in his voir dire examination concealed such fact from the defendant. G-ibney v. Transit Co., 204 Mo. 704; State v. Eoley, 144 Mo. 600. (3) The information in this cause is defective in that it fails to properly charge that the assault was committed by the defendant “with felonious intent,” and the defendant’s motion in arrest should have been sustained.

      John T. Barker, Attorney-General, and S. P. Howell for the State.
    (1) The information contains every essential element necessary to constitute the crime charged, and is drawn in accordance with forms which have repeatedly met with the approval of this court. Sec. 4481, R. S. 1909; Kelley’s Crim. L. & Pr., sec. 576, p. 505; State v. Barton, 142 Mo. 453; State v. Johnson, 129 Mo. 26; State v. Bond, 191 Mo. 565; State v. Bartlett, 209 Mo. 404; State v. Poister, 202 Mo. 46; State v. Sovern, 225 Mo. 583. It is unnecessary to aver in the information, when the assault is made by shooting, that it was committed with a deadly weapon. The effect produced, as detailed in the evidence, is sufficient confirmation of the deadly qualities of the instrument employed. State v. Laycock, 141 Mo. 274; State v. Harris, 209 Mo. 434; State v. Keener, 225 Mo. 488. (2) The court did not err in accepting J. S. Lumkin as a juror in this case. This juror stated in his voir dire examination that he knew nothing, about the case except from newspaper reports which did not pretend to give the details fully. Although he testified that he had formed an opinion, or rather an impression had been made upon his mind from such reading, yet he further stated that if he were selected as a juror in the case he would he governed by the law and the evidence and the instructions of the court. State v. Cunningham, 100 Mo. 388; State v. Schmidt, 136 Mo. 650; State v. Church, 199 Mo. 631; State v. Bronstine, 147 Mo. 530; State v. Darling, 199 Mo. 196; State v. Vickers, 209 Mo. 12; State v. Bobbitt, 215 Mo. 46; State v. Rasco, 239 Mo. 557. The juror Peach Wall was qualified and competent to serve as a member of the trial jury in this cause. It seems clear that whatever expression, if any, this juror had made prior to the trial was based on common rumor, and that it was leveled at the nature of the crime committed and not at the guilt or innocence of this particular defendant. Remarks based on common rumor and evidencing the existence of bias or prejudice against the crime committed constitute no sufficient ground for rendering a juror incompetent to serve as such. State v. Core, 70 Mo. 491; State v. Burns, 85 Mo. 47; State v. Conce, 87 Mo. 629; State v. Sykes, 191 Mo. 76; State v. Reed, 137 Mo. 132; State v. Forsha, 190 Mo. 324; State v. Myers, 198 Mo. 250.
   FARIS, J.

Defendant was tried in the circuit court of Miller county u.pon an information charging him with the violation of section 4481, Revised Statutes 1909, for that he had on purpose and of his malice aforethought shot one ITerod Williams, with a certain shotgun. Ho was convicted and his punishment fixed by the jury at imprisonment in the penitentiary for a term of two years; from the sentence which followed he has duly appealed.

The information upon which the conviction of defendant was had becomes pertinent for the reason that he challenges the sufficiency thereof. The attack upon the information is somewhat general, but in order to illustrate the point we append this information (caption and verification, both of which were in due form, omitted), as follows:

“Walter S. Stillwell, prosecuting attorney within and for the county of Miller, in the State of Missouri, under his oath of office informs the court that one Howell Mace on the 1st day of July, 1913, at the county of Miller, in- the State of Missouri, in and upon one Herod Williams, feloniously and on purpose and of his malice aforethought, did make an assault, and did then and there on purpose and of his malice aforethought feloniously shoot him the said Herod Williams, in and upon the head and neck of him, the said Herod Williams, with a cetrain shotgun which he the said Howell Mace then and there had and held in both his hands, with the intent then and there him, the said Herod Williams, on purpose and of his malice aforethought, feloniously to kill and murder, against the peace and dignity of the State.”

The facts, in the light of the points urged for reversal, are not particularly pertinent, but in order that some connected idea may be had as to these facts, which to a slight extent illuminate the discussion of the alleged errors, we append them:

The defendant Mace and the prosecuting witness Herod Williams were farmers, residing on adjoining farms, some three miles from the little village of Uhlman in Miller county. The farm occupied by defendant lies'north of that occupied by the prosecuting witness and is owned by defendant’s father, one John •Mace, who resides with him. A narrow lane, which it seems was only a few feet in width, runs between the two farms, which lane is fenced on either side by a single barbed wire. The house occupied by defendant and that occupied by the prosecuting witness were only some quarter of a mile apart and plainly in view from each other. Bad feeling had existed and divers other clashes had occurred between defendant and said Williams during a period of some two years.

On July 1,1913, the day of the shooting, the prosecuting witness was engaged in plowing a field of corn. At about tbe hour of nine o’clock in the morning of that clay he hitched his horse to a fence post and went to the house for the purpose of getting a drink of water. After getting this drink the prosecuting witness started back to his plowing and to the point where he had hitched his horse. About the time he got back near the place where he had been plowing he noticed, as he testifies, that a hen and a brood of chickens belonging to him, and which had been following his plow that morning, were over in a Stubblefield belonging to the Maces. In order to make them return to his premises he picked up a rock or clod, which he threw at the hen, and thus frightened her and caused her to come back upon the prosecuting witness’s side of the lane. Thereupon he turned toward his plowing and was in the act of unhitching the bridle rein of his horse from a post, to which he had tied it, for the purpose of again resuming his work, when he saw defendant running toward him from defendant’s house, carrying a gun, using profane and vile epithets and saying, “I will kill you this time.” The prosecuting witness tells us that he had not before on that morning seen defendant; that he had had no trouble with him or with any of his family that day and was at first in doubt as to whether the language of defendant was directed toward him. But as defendant continued to approach him, armed with a gun and in a threatening manner and upon his repeating the opprobrious epithet the prosecuting witness • asked defendant to stop and come no further. Upon defendant replying with an oath and continuing to come toward the prosecuting'witness the latter started toward his own house, meeting upon the way there his wife, who came toward him carrying a pistol. This pistol, the prosecuting witness testified, he asked his wife to give him, but she refused and the witness after a struggle with her, being unable to secure possession of the pistol, turned and went with her toward the fence where the horse was hitched and toward which point, as the context shows, the defendant was himself moving. An altercation then ensued between defendant on the one hand and the prosecuting witness and the latter’s wife on the other, in the course of which both the defendant and the prosecuting witness called one another liars and in which the defendant, according to the testimony of both Mrs. Williams and the prosecuting witness, applied to Mrs. Williams a very vile epithet. After some further altercation the defendant fired at Williams with the gun which he was carrying, which it seems was a 20-guage single-barreled shot gun loaded with number four shot, striking Williams in the forehead with a number of the pellets. Immediately thereupon the prosecuting witness called to his wife to shoot the defendant. Mrs. Williams began firing the revolver which she was carrying and continued to do so as rapidly as she could pull the trigger till she had fired five shots and emptied the weapon. Defendant then came up closer to Williams and his wife and firing with the gun at Mrs. Williams shot her in the wrist and left breast. The prosecuting witness picked up a rock, which he threw at the defendant while defendant was reloading his gun and then turned, as he says, to assist his wife, who was seriously wounded, in getting ba,ck to the house. As he turned his head and back to the defendant the latter again fired and shot the prosecuting witness in the back of the head, causing the latter to fall. From these shots the prosecuting witness was confined to his room for some week or ten days, recovering finally, and apparently fully.

The state of facts above briefly set out are taken largely from the testimony of the prosecuting witness, who is, however, corroborated by his wife. The testimony of the defendant, his wife and his father tends to prove that the defendant acted in self-defense; that he had procured the gun and started toward the scene of the difficulty for the purpose of protecting his father, at whom the prosecuting witness was throwing rocks. He further swears, and both his father and his wife corroborate him, that the shooting was begun by Mrs. Williams and that she had twice fired the revolver at him before he fired a shot at either her or the prosecuting witness. We need not concern ourselves with this, however, since this conflict in the evidence has been resolved by the triers of fact against defendant and is no longer a debatable question here.

Upon the trial of the case objection was made to the competency as a juror of one John S-. Lumpkin, who was chosen as one of the panel of twenty-four, but was not upon the panel of twelve who actually tried defendant.

Likewise after the. trial the competency of one' Peach Wall, who was a member of the panel of twelve who actually tried defendant, was attacked in the motion for a new trial and this attack was attempted to be backed up by the affidavit of one Mrs. Janie Thomas. This -affidavit becomes pertinent and is as follows, omitting caption, signature and jurat:

“Mrs. Janie Thomas, of lawful age, being first sworn, on her oath says that on or about the —— day of-, 1913, and within a few days after an alleged assault by one Howell Mace upon Mr. Williams in Miller county, Mo., that at Faith, in Miller county, Mo., she was in the store building of James Wall, where there were a number of people gathered together discussing the case of State of Missouri v. Howell Mace, charged with assault on said Williams and his wife, that one Peach Wall was also present, and in discussing said case the said Peach Wall, being the same person who was'on the jury in the trial of said case in circuit court of Miller county, Missouri, expressed his opinion in said cause as to what should be did at the trial thereof by saying in referring to Howell Mace, the defendant, that £a fellow like that’ (meaning Howell Mace, the defendant) ‘ought to be sent to the penitentiary. ’ ’ ’

Counter-affidavits were filed.by the State; one by Wall, the juror whose competency was attacked, in fair effect denying the truth of Mrs. Thomas’s affidavit, and one by the prosecuting attorney Stillwell, touching the facts which transpired upon the voir dire examination of said Wall. The affidavit of Wall, caption, signature and jurat omitted, is as follows:

“Peach Wall, of lawful age, being first duly sworn, says that he remembers being present in the store of James Wall at Faith, Miller county, Mo., within a very short time after the shooting of Mr. and Mrs. Herod Williams by Howell Mace, at which time there were a number of men present; that words had just been received by them over the telephone that Mrs. Herod Williams was either dead or dying and that Mr. Williams was fatally injured as a result of the shooting, but that the report at that time was that John Mace did the shooting’; that affiant left the county about that time and it was several days afterwards before he found out that Howell 'Mace did the shooting; that there were some expressions made by those present to the effect that a person who was guilty of an act of that kind should be in the penitentiary, but this affiant states that he has no recollection whatever of having made such an expression or statement himself, but that if he did make such an expression it was based on the report which had just been received as aforesaid.
“Affiant says that he remembers there were several persons present at said time and place and engaging in the conversation regarding said shooting, and that some expressions were made as above, but affiant states the fact to be that at no time and place prior to the trial of the case of the State of Missouri v. Howell Mace in the circuit court of said county did he make the expression or statement that the defendant was gnilty of the crime charged and that if he made any expression at all at the time and place aforesaid it was to the effect that if a person was guilty of such an act he should be in the penitentiary.
“And further affiant saith not.”

The affidavit of Stillwell, the prosecuting attorney, in substance states that upon the voir dire examination of said Wall the latter stated upon his oath in the presence of defendant and of the latter’s counsel, that he (Wall) had had a conversation with the brother-in-law of the prosecuting witness but that he (the juror) had not formed or expressed any opinion as to defendant’s guilt or innocence; that the juror was thereupon examined touching the condition of his mind as to bias and prejudice and as to the opinion, if any, which the juror had expressed in the conversation aforesaid. He denied having either bias or prejudice, or having any opinion as to defendant’s guilt or innocence. These three affidavits for and against the alleged bias of the juror Wall comprised all of the proof offered upon this phase. The learned trial court held that no. sufficient prejudice or bias was shown, and overruled this assignment of error.

The three points mentioned, that is to say, the alleged insufficiency of the information and the alleged incompetence of the jurors Wall and Lumpkin are the only points made by the defendant. To the discussion of these the appended opinion is directed.

OPINION.

I. The first point urged by defendant’s learned counsel as a reason for reversal is that the information is bad. We have set it out in full in the statement, except the caption and verification, which are proper form. Defendant’s only specific attack upon this- information is that it does not charge that the assault upon the prosecuting witness Williams was made with a felonious intent. Even a casual examination of this information discloses that defendant is in error as to this. After alleging that the assault was made feloniously; that the shooting and striking were done feloniously, the information concludes by charging’ that the assault and shooting were clone “with the intent then and there, him the said Herod Williams on pu-rpose and of his malice aforethought, feloniously to MU and murder.” This is sufficient and the information is a good charge for an assault with intent to kill perpetrated by means of a firearm (Kelley’s Crim. Law & Prac. 576; State v. Bond, 191 Mo. 555; State v. Doyle, 107 Mo. 36), the dangerous and deadly nature of which we know and judicially notice. The distinction to be observed in drawing an information under said section 4481, when the lethal weapon is a rock, club or some other weapon, the dangerous and deadly nature of which courts do not judicially notice, is obvious and is fairly well 'disclosed by the very language of the section in question. We are forced to disallow this contention.

II. The next contention is that the juror Lump-kin was incompetent. This juror’s name does not appear on the trial panel of twelve, so he must have been on the original. venire of twenty-four have been challenged off by either the State or the defendant. We pretermit the discussion of how far this fact of itself might minimize the alleged error, since upon this, record we need express no opinion on the above suggested phase.

The record discloses that this juror did not personally know the defendant; that he was in some doubt as to whether he knew Williams; that he had read some newspaper accounts of this assault, from which sole source he had formed an opinion as to the guilt or innocence of defendant, which opinion he still had and which was of snch character as to require some sworn testimony for its removal. He said, however, that he would be governed by the sworn testimony. Thereupon counsel for defendant objected to the retention of this juror thus: “The defendant’s cownsel objects to the juror, challenges him for can,se.”

Thereafter, counsel for the State undertook to compel a qualification of the juror and at the end got him to say that “he thought he was capable of laying aside and would lay aside the opinion which he now had and be governed by the sworn testimony alone.”

We need not take the time to consider whether the juror was competent or not, since as clearly appears no proper objection, or rather no proper challenge for cause, was made to his competency. A challenge for cause must be specific and point out the ground or reason for the challenge. It is no more sufficient to object simply, or to say that the juror is challenged for cause, which is but a legal conclusion, than it is to object to the offer of inadmissible evidence, for that it is not competent. [State v. Fields, 234 Mo. 615; State v. Bobbitt, 215 Mo. 10; State v. Tucker, 232 Mo. 1; State v. Miles, 199 Mo. 530; State v. Myers, 198 Mo. 225; State v. McCarver, 194 Mo. 717; State v. Evans, 161 Mo. 95; State v. Soper, 148 Mo. 217; State v. Albright, 144 Mo. 638; State v. Dyer, 139 Mo. 199; State v. Reed, 137 Mo. 125; State v. Taylor, 134 Mo. 109.] It follows that this point is not well taken.

In passing we take the opportunity to say that the small trouble of telling an incompetent juror to stand aside and of calling, ordinarily from the by-standers, a competent one to take his place, ought so lightly to weigh ag’ainst the hazard to the case of refusing to take this step, and against the ofttimes outrageous unfairness to a defendant on trial, mayhap for his life, that ordinarily neither the court nisi nor the State’s counsel, out of the abundance of caution and impartiality, should ever take so momentous a chance. But for most unaccountable reasons, we have long observed that in a great majority of cases the moment the defense undertakes to disqualify a juror the State (aided more often than necessary by the trial court) rushes to the juror’s relief as if the particular juror were Atlas and the world rested on him. It is no reflection on the trial court or on the State’s attorney to have counsel for defendant disqualify a proposed juror; it is more often a reflection on both judge and counsel when they refuse to permit it. With the world absolutely filled with competent, unbiased and unprejudiced jurors, error in this behalf is usually gratuitous and unnecessary, a few notorious causes celebres excepted.

III. Complaint is likewise made that one Wall, who was on the trial panel of twelve, was a prejudiced and incompetent juror and one who had before the trial both formed and expressed an opinion of defendant’s guilt.

We set out the affidavits bearing pro and con upon this juror’s alleged incompetence. A reference to the statement of facts as we set them out, shows that the affidavit of Mrs. Janie Thomas was filed in support of the allegation of Wall’s 'bias, in which affidavit it was charged that “said Peach Wall being the same person who was on the jury in the trial of said case, expressed his opinion in said cause as to what should be did [sic] at the trial thereof by saying in reference to Howell Mace, the defendant, that ‘a fellow like that’ (meaning Howell Mace, the defendant) ‘ought to be sent to the penitentiary.’ ” In opposition to the charge contained in the affidavit of Mrs. Thomas, the affidavit of said juror Wall was filed, which affidavit we likewise set out. Reference to it discloses that in fair substance Wall says that while at the place mentioned by Mrs. Thomas in her affidavit, he heard from a conversation over the telephone that John Mace had shot both Mr. and Mrs. Herod Williams; that the former was dying and the latter fatally wounded; that affiant (the juror Wall) shortly after this left the country temporarily and did not for a number of days thereafter learn that defendant Howell Mace did the shooting; that other persons present expressed the opinion that a person who was guilty of an act such as was detailed over the telephone ought to be in the penitentiary, but that affiant has no recollection of having made any such remark himself, but if he did so, it was based on the telephone report aforesaid; that at no time or place prior to the trial of defendant did affiant make the statement that defendant was guilty of the crime charged, but that whatever he may have said was to the effect that if a person was guilty of such an act he should be in the penitentiary. It further appears that upon his voir dire this juror swore he had formed no opinion. Upon this state of the proof touching bias the learned trial court ruléd against the defendant and overruled the assignment of alleged error based upon the juror’s alleged incompetence. Was this error?

It appears in a reasonably clear way when we analyze fairly what the juror Wall swears he said, that his bias and the views he expressed were not against the defendant at all, but that he entertained strong prejudice against the crime committed, by whomsoever committed, the report whereof had come to him without, details over the telephone. His animosities were impersonal, directed toward that which telephone rumor characterized as a most heinous offense, and not toward defendant himself at all. In fact he did not learn that defendant did the shooting till some days after the alleged statements are said to have been made. In such state of things what was said in State v. Sykes, 191 Mo. l. c. 76, is appropriate:

“It is true some of them said they were prejudiced against this kind of case or crime, but not against a man charged with such crime before being proven guilty. It was held in State v. Bryant, 93 Mo. 273, and in State v. Williamson, 106 Mo. 162, that persons who have formed opinions of the guilt of an accused upon trial for crime, from rumor or newspaper reports, are not for that reason rendered incompetent to sit as jurors on the trial of the case, where they answer upon their voir dire that they can give the defendant a fair and impartial trial. [State v. Duffy, 124 Mo. 1.] A juror who states on his voir dire examination that he has formed and expressed an opinion as to the guilt or innocence of the accused and that the opinion has been formed from rumor or newspaper reports, and it will require evidence to remove it, is not incompetent, provided it appears to the satisfaction of the court that such opinion will readily yield to the evidence in the case and that the juror will determine the issues upon the evidence adduced in court, free from bias. It is said in State v. Cunningham, 100 Mo. 382, that all doubts should be resolved in favor of the finding of the trial court, and the question of the qualification of the juror must be determined from his whole examination, including his demeanor while answering questions under oath touching his qualifications as a juror. ’ ’

We abate not one jot or tittle from the rule laid down in State v. Gonce, 87 Mo. l. c. 630, that “it is settled law in this State that it is a good ground for a new trial when a juror on his voir dire examination has stated that he has neither formed nor expressed an opinion as to the guilt or innocence of the accused, and after verdict it comes to the knowledge of the accused that such juror had prejudged the case, and that fact, is made to appear to the satisfaction of the court. In such cases the question as to whether the juror had prejudged, the case is one of fact to be determined by the trial judge, as any other question of fact on sworn statements.” We are nevertheless of the opinion, the source of the rumor considered, the doubt whether the remark was made at all or not, and the doubt of its applicability to defendant, or to a general but commendable detestation of heinous crimes, that we ought to defer to the finding of the learned trial court. [Morgan v. Ross, 74 Mo. 318; State v. Cook, 84 Mo. 40; State v. Gonce, supra.] This we do and disallow this contention.

Finding no other error properly preserved, we are of opinion that the case should be affirmed. Let this be done.

Walker, P. J., and Brown, J., concur.


source: Caselaw Access Project

author: WILLIAMS, C. PER CURIAM.

license: Public Domain

text:
    THE STATE v. HARRY FIELDS, Appellant.
    Division Two,
    November 24, 1914.
    1. APPEAL: Criminal Case: No Brief. Although appellant in a criminal case has filed no brief, still the Supreme Court under the statute must review the complete record.
    2. INDICTMENT: Venue: Stated in Margin. It is sufficient that the venue be named in the margin or cantion of an indictment.
    3. --: Time: Not of Essence of Offense: Killing Animal With intent to Steal it. Time is not of the essence of the offense of wilfully killing an animal with intent to steal it, and therefore an indictment is not invalid that fails to state the time when an alleged offense of that kind was committed.
    4. OBJECTIONS TO EVIDENCE: Exceptions: Appeal. To avail upon appeal an objection to the admission of evidence must assign a reason or ground why the evidence is objected to, and an exception must be saved to the court’s 'action in overruling the objection.
    5. VERDICT: Supported by Evidence: Appeal. Before the Supreme Court will relieve on the ground that the verdict is not supported by the evidence, there must be either a total failure of the evidence, or it must be so weak that the necessary inference is that the verdict is the result of passion, prejudice, or partiality.
    6. -: -: -: Wilfully Killing Hog with Intent to Steal It. Although in a trial for wilfully killing a hog with intent to steal it, there is no direct evidence that defendant shot the hog with such intent, yet, in view of the fact . that the wound in the head of the animal was about the size of a silver dollar and contained portions of paper wadding, almost entirely discrediting plaintiff’s statement that, thinking the hog a squirrel, he fired a shotgun at it while he was thirty or forty feet from it, and of the further facts that soon after the shooting he answered, “Nothing, nothing,” 'to a question from a person on the place as to what he was doing, and told the constable on the night of his arrest that “he had killed the hog, he did not aim to let his family starve,” it is held that the evidence is sufficient to support a verdict of guilt.
    Appeal from Pemiscot Circuit Court. — Eon. Frank Kelly, Judge.
    Affirmed.

      Duncan & McCarty for appellant.

      Jolm T. Barker, Attorney-General, and Shrader P. Eoivell for the State.
   WILLIAMS, C.

Under an indictment charging defendant, under section 4541, Revised Statutes 1909, with wilfully killing a hog, with intent to steal the same and convert it to his own use, defendant was tried in the circuit court of Pemiscot county, found guilty by the jury and his punishment assessed at two years in the penitentiary. Defendant thereupon perfected an appeal to this court.

The evidence upon the part of the State tends to establish the following facts: About 2 p. m., on the 22d day of November, 1912, a sandy-colored hog, weighing over 200 pounds, the property of one Joe Hampton, was found dead in front of Hampton’s residence and about 40 yards from Ms barnyard gate. The hog was first discovered by Mrs. Hartwell, a niece of Mr. Hampton, who, with her husband, lived in the Hampton home, keeping house for Mr. Hampton. On the date in question, defendant Fields, in company with one Fred Allen, each on horseback, left the farm of a Mr. Winslow, where defendant Fields had been engaged in harvesting his corn crop, which he had, as tenant, raised on Mr. Winslow’s farm, and started to the home of defendant near Wardell, Missouri. The route from the Winslow farm to the defendant’s home led by the Hampton farm. Before reaching the Hampton farm, the two men met one Louis Ayres who was carrying a shotgun. Thereupon defendant borrowed the shotgun from Ayres and directed that Ayres and Allen take charge of the two horses and continue on down the road, stating that he would cut across country, through the timber, and hunt for squirrels. Ayres testified that when he and Allen were about half a mile from the Hampton house, he heard the report of a gun followed by the squealing of a hog. The report of the gun was also heard by Mrs. Hartwell, who, returning from taking dinner to her husband, at that time engaged in work about a mile from the house, had reached the vicinity of the barn lot on the Hampton farm when she heard the report of the gun and noticed that the cow, hogs, and chickens in the barn lot were much frightened. She turned into the lot and met the defendant Fields therein, who had a shotgun in his hand. She asked him what he was doing there and he replied, “Nothing, nothing.” In a few minutes defendant left the premises but returned shortly and requested Mrs. Hartwell to cook a squirrel for him. TMs request was refused and defendant again departed. A short time thereafter, Mrs. Hartwell, while doing some chores about the premises, discovered the body of the dead hog, at the place above mentioned. At that time fresh blood was oozing out of the head of the hog. Mrs. Hartwell’s husband and the hired hand about the place returned home about sundown, examined the hog and dressed the same for meat. In their examination and dressing of the hog, they found that a hole about the size of a silver dollar was torn in the head of the hog just above the left eye, and that the wound was made by a shotgun, portions of the paper wadding being found in the wound. After leaving the Hampton premises, defendant joined his companions some distance down the road, and about dusk they arrived at the home of a neighbor about a mile distant from the Hampton farm, where they obtained their supper. At this farm defendant attempted to borrow a wagon, stating that he desired to haul some corn, but the loan of the wagon was refused. Defendant was arrested about the 5th of December by the constable and upon being arrested voluntarily stated to the constable that, on the day in question, he had been hunting in the timber and saw a squirrel run up a tree and while endeavoring to locate the squirrel heard a noise in some nearby bushes and thinking it was a squirrel had fired in that direction and killed the hog. Later, and on the same evening of the arrest, and while defendant and the constable were waiting in a saloon in order to give defendant time in which to furnish bail, the defendant in the meantime having become somewhat intoxicated, stated to the constable ‘ ‘ that he had killed the hog; that he did not aim to let his family starve.” The evidence on the part of the State further showed that the body of the hog was found in some dead weeds in an open space in front of the house and that the timber did not exist for a space of thirty or forty yards beyond that point. Defendant, who was not cross-examined, testified as follows:

“Well, I had been over at Terry gathering my, crop; it was the 22d of November when I got done, so I tried to get a wagon from Mr. Winslow and Mr. Johnson to take my corn home before they cnt the ditch — this ditch was going to be cut on the 25th of November and then I couldn’t get my corn to my home without going four or five miles out of the way, so I had started to Wardell to borrow a wagon, so I met Louis on the way as I was going to Wardell and he had a shotgun and I says, 'Now, you fellows take the horses and I’ll go through the woods and kill some squirrels,’ and I went on through the woods and they taken the horses, and I .had killed a couple of squirrels and as I was going along the road I saw another one run across the road and it run up a tree and I run around the tree to shoot it but I couldn’t see anything of it, so a little noise attracted my attention, I guess thirty or forty steps away, and I thought I saw the squirrel and I blazed into this place and this hog raised up and squealed and run off; I didn’t know the hog was dead until two or three days after that, and when I found out that the hog was dead I offered to pay for it; I come on by there to see him but he wasn’t there; I sent Louis there two or three times to pay him for the hog and he said that it was all right.
“Q. What did you think you were shooting at at the time you shot this hog? A. I thought I was shooting at a squirrel.
“Q. What color was it? A. I thought it was a fox squirrel.
“Q. What was the color of this hog? A. Kind of a red — brownish.”

Appellant has failed to favor us with a brief in his behalf but, pursuing our statutory duty in the premises, we will proceed to review the complete record which is before us.

I. The indictment is attacked on the grdunds that it does not properly charge the venue nor the date of the commission of the alleged offense. It is true that the body of the indictment does not state the venue. However, the proper venue is named in the caption or margin thereof, and this under the statute is sufficient. [R. S. 1909, sec. 5107; State v. Long, 209 Mo. 366, l. c. 377.]

Neither does the indictment state the time at which the offense was committed. However in the present case time is not of the essence of the offense and the omission therefore does not render the indictment invalid. [R. S. 1909, sec. 5115.]

II. In the motion for new trial, it is alleged that the court erred in excluding proper evidence offered by appellant and in admitting improper evidence offered by the respondent. With refererLCe the first point, it is sufficient to say that a careful review of the record fails to disclose a single instance wherein the court excluded any evidence offered by appellant. As to the second point the record does disclose some unimportant instances where the court admitted evidence of- ■ fered by the State over the objection and exception of appellant, but the rulings of the court thereon appear to be free from any error and furthermore in the large majority of instances the record shows that either the objection made did not assign any reason or ground for the objection or when objections were properly made and overruled no exception was saved to the ruling of the court thereon. As to all such instances no matter is preserved for review.

III. Other assignments of error in the motion for trial allege that the evidence is insufficient to support the verdict.

The evidence shows that defendant killed the hog, which was the property of another. It is true that there is not direct or positive evidence that he wilfully killed the hog with intent to steal the same or convert the same to his own nse, yet we are of the opinion that the evidence is sufficient to sustain the verdict. The fact that the wound in the head of the hog was about the size of a silver dollar and contained portions of paper wadding from the discharged cartridge indicates that defendant was very close to the hog when he fired the shotgun and would almost entirely discredit his statement that he was 30 or 40 steps distant and therefore at such distance as to allow the theory to prevail that he might have mistaken the hog for a squirrel. This, considered in connection with the fact that just after the shot was fired, in answer to the question of Mrs. Hartwell as to what he was doing, he answered, “Nothing;” thereby showing an attempt at concealment of what he had done and the statement which he made to the constable on the night of his arrest that “he had killed the hog; that he did not aim to let his family starve,” supplied sufficient facts and circumstances to support the verdict.

The correct rule with regard to the sufficiency of the evidence is stated by Faris, J., in the case of State v. Concelia, 250 Mo. 411, l. c. 424, as follows:

“Where there exists upon the record, what has' been rather loosely called any ‘substantial evidence’ of the existence of a state of facts legally required to be shown, it is our duty to relegate the determination of controverted questions to the triers of fact. ‘The rule is, that before this court will relieve on the ground that the verdict is not supported by the evidence, there must be either a total failure of evidence, or it must be so weak that the necessary inference is, that the verdict is the result of passion, prejudice or partiality.’ ”

We have examined the instructions given by the court and find the same to be free from any error that would work a reversal of the case. Neither does any error appear upon the record proper. It appears that the defendant has had a fair and impartial trial and that the judgment should be affirmed. It is so ordered.

Roy, G., concurs.

PER CURIAM.

The foregoing opinion of Williams, C., is adopted as the opinion of .the court.

All the judges concur.


author: BROWN, J.

text:
    THE STATE v. HARRY BARRETT, Appellant.
    Division Two,
    November 24, 1914.
    STEALING FROM PERSON OF ANOTHER: Sufficient Evidence. The evidence in this case, though the account of the theft by the prosecuting witness is rambling, probably due to his natural stupidity, was sufficient to take the case to the jury, under an indictment charging defendant with having taken $125 from the person of said witness, as they walked along a public street.
    Appeal from Jackson Criminal Court. — Hon. Ralph S. Latshmv, Judge.
    Aeetrmed.

      George L. Walls for appellant.

      John T. Rarker, Attorney-G-eneral, and Shrader P. Howell, for the State.
    (1) The information in this case is sufficient in form and substance; it contains every essential element to constitute the crime charged and follows the forms approved by this court. Sec. 4538, R. S. 1909, as amended by Laws 1911, p. 194; Kelly’s- Crim. L. & P., sec. 667, p. 596; State v. Williams, 54 Mo. 170; State v. DeWitt, 152 Mo. 79; State v. James, 194 Mo. 270. The description in the information of the money al leged to have been stolen is amply sufficient and fully meets the requirements of the statute. Sec. 5111, R. S'. 1909; State v. Burnett, 81 Mo. 119; State v. Calvert, 209 Mo. 285. (2) As the sixth assignment of error in his motion for a new trial the defendant complains because the court refused to sustain a demurrer to the evidence at the close of the State’s case. A complete answer to this allegation is that nowhere in the transcript except in the motion for a new trial can be found any reference to such request having been made. There is neither reference made to the offering of such instruction, to the action of the court thereon, nor any exceptions entered to the failure of the court to rule. It follows, therefore, that this assignment of error cannot be reviewed here. State v. Williams, 147 Mo. 18; State v. Williams, 186 Mo. 139; State v. Glasscock, 232 Mo. 291; State v. Conway, 241 Mo. 279. (3) The evidence is amply sufficient to justify the verdict rendered. It was for the jury to judge of the credibility of the witnesses and the weight and sufficiency of the evidence. The case was submitted by the court under fair and proper instructions to the jury and having considered the evidence, the jury found defendant guilty as charged. There being substantial evidence to support the verdict, this court will not interfere. State v. Tetrick, 199 Mo. 104; State v. Sassman, 214 Mo. 738; State v. Sharp, 233 Mo. 298; State v. Concelia, 250 Mo. 424.
   BROWN, J.

Defendant was convicted in the criminal court of Jackson county on a charge of stealing $125 from the person of one Garfield Cox, and appeals from a judgment fixing his punishment at five years in the penitentiary.

The evidence of the prosecuting witness Cox is in substance as follows:

That he is a farmer of Putnam.county, Missouri, and came to Kansas City about April 10, 1913, for the purpose of securing medical treatment. A few days after his arrival he started to walk from his hotel to the stockyards. On the street he met defendant Barrett, who, though a stranger, was quite sociable. He gave witness an apple and accompanied him to the stockyards for the alleged purpose of examining some horses. At the stockyards defendant did not concern himself about horses, but commenced gambling by matching coins with a third man whom the witnesses call “Arkansas.”' Defendant and “Arkansas” tried to induce witness Cox to join them in the gambling, but he declined, explaining that he had no money with him, that his money was at his hotel. Defendant thereupon told Cox that it was very unsafe to leave money at a hotel and made him believe that he ought to ge;fc the money and put it in a bank. Pursuant to defendant’s suggestion witness Cox and defendant went to the hotel, where Cox took his money out of a valise, placed it in his outside overcoat pocket, and went out on the street with defendant. Witness thought they were going to a bank, but could not recollect what bank. When they had gone a few blocks Cox felt something touch his coat, and looking around saw defendant with the $125 in his hand. He asked defendant to give up his money, but defendant refused to do so and started away. Cox followed defendant until they met police officer Peters, who arrested defendant. When first approached by the officer defendant was walking arm in arm with a man named Meyers, and witness Cox was some fifty feet behind them.

Officer Peters testified that when he first came upon the parties and saw that prosecuting witness, Cox, was excited and heard him accuse defendant of having his money, he asked defendant if he had Cox’s money, to which defendant replied that he had $125 in money “that Cox gave him to mind for him.” Defendant, at tíre request of the police officer, gave up Cox’s money and it was deposited in the police sta- ■ tion.

Defendant, testifying in his own behalf, stated that prosecuting witness Cox had been gambling with him and “Arkansas” and gave defendant the $125 as a wager or a bet. He demed taking the money from the pocket of Cox.

OPINION.

I. Defendant has not filed any brief. Pie saved no exception to the admission or exclusion of evidence, and the only point preserved for our review by his motion for new trial is the alleged insufficiency of the evidence to support the conviction. Prosecuting witness Cox gave a somewhat rambling account of his experience with defendant. This was probably due to the natural stupidity of said witness. However, this witness testified positively that he did not gamble with defendant, nor give him his money; that he felt some one touch Ms coat at a time when he and defendant were walking alone, and, looking around immediately, saw Ms money in defendant’s hand. Defendant admitted having the money, and it was a question of veracity between the prosecuting witness and defendant as' to whether witness gave the money to defendant, or whether defendant stole it from the witness. The evidence was sufficient to take the case to the jury, and this point is ruled against defendant. [State v. Concelia, 250 Mo. l. c. 424.]

II. In his motion in arrest defendant makes a general attack on the information “that it is not a proper information. ” i On this assignment it is only necessary to say that we have examined the information, as well as all other parts of the record proper, and find no defects therein. Let the judgment of conviction be affirmed.

Walker, P. J., and Faris, J., concur.


text:
    THE STATE v. EDWARD PARKER, Appellant.
    Division Two,
    November 24, 1914.
    1. ROBBERY: At Common Law. At common law the elements of robbery were practically the same as under the statute, Sec. 4530, R. S. 1909; and therefore common-law adjudications on the subject aid in understanding the statute.
    2. --: One Offense: Two Methods. The statute (Sec. 4530, R. S. 1909) denounces but one offense of robbery from the person, which, however, may be committed in two ways, namely: By the felonious taking of the property of another from his person (a) by violence or (b) by putting him in fear of some immediate injury to his person. And if there is neither violence nor putting in fear, the taking of $2.25 from another’s pocket is not robbery in the first degree, but lárceny.
    3. -: Fear: After Crime Has Been Committed. Where the theft of $2.25 from another’s pocket, accomplished by the accused placing his hand in his pocket and extracting the money therefrom while an accomplice engaged him in conversation, no blow being struck or threatened, no weapon being used or shown, no threat of injury, either immediate or remote, being uttered, and the only fear being that after the money was taken he became frightened, there is no “putting in fear” in the sense in which those words are used in the statute.
    4. -: Violence: Extracting Loose Coins. Where the coins stolen were lying loose in another’s pocket, and the thief, while an accomplice engaged him in conversation, inserted his hand in his pocket and extracted them, no force or violence being necessary to extract them and there being no knowledge that they were being extracted until the hand was felt in the pocket, there was no such violence as to constitute robbery in the first degree. The violence used in the robbery must precede or be contemporaneous with the taking of the property. [Distinguishing State v. Broderick, 59 Mo. 318.]
    5. ROBBERY: Convicted of Larceny. Under an indictment for robbery the accused may, in a proper case, be convicted of larceny. And where the trial court should have sustained defendant’s instruction in the nature of a demurrer to the evidence, since it fails to show he was guilty of robbery, yet as it does show that he was guilty of larceny,' he will not, on his appeal, be discharged, but the judgment will be reversed, and the cause remanded for further procedure according to the law and the facts.

      Appeal from Marion Circuit Court. — Hon. David H. Harris, Judge.
    Reversed and remanded.

      Nelson & Bigger and Whitecotton & Wight for appellant.
    There is no substantial testimony to support the verdict. Therefore the court committed error in re- • fusing to give the demurrer asked by the appellant at the close of the State’s case. This was a special demurrer and went only to the sufficiency of the testimony to support the charge of robbery. The testimony of the prosecuting witness wholly fails to show that any property was taken by “violence,” or “by putting the owner in fear. ’ ’ One or the other must be shown. Robbery in the first degree under our statute and decisions, involves an intentional putting in fear, or the use of violence by the defendant. State v. Sommers, 12 Mo. App. 375; State v. Smith, 119 Mo. 439; State v. Jenkins, 36 Mo. 372; State v. Howerton, 59 Mo. 91. It is of the very essence of robbery in the first degree, that the violence shall be present and immediate, and without it so being there is no case made. State v. Smith, 119 Mo. 439. It is not robbery to obtain property from another, without violence to the person by “artifice and tricking.” Thomas v. State, 91 Ala. 34; Doyle v. State, 77 Ga. 513. It is not robbery to obtain property from another by the use of only sufficient force, to remove property from the pocket of the owner. Fanning v. State, 66 Ga. 167; Territory v. McKern, 3 Idaho, 15; State v. Sommers, 12 Mo. App. 374. The strongest case in Missouri, in support of the contention of the respondent that there is sufficient proof, in this case of the necessary force to make out a case against the defendant, is the case of State v. Broderick, 59 Mo. 345, and the facts in that case are very much stronger as to the force used than the facts warrant in this case. The respondent seems to rely on this case, to sustain the conviction of the defendant and copies in its brief nearly all the opinion of the Broderick case, and then contends that the ■facts in the Broderick case are similar to the facts in this case. The respondent after concluding the quotation from that opinion comments as follows: “The defendant placed himself, unawares immediately to the side of the prosecuting witness, and snatched the money which was then and there attached to the clothes of the prosecuting witness, in such manner as to create a resistance.” In what way was the money alleged to have been taken attached to the clothes of the prosecuting witness. This is a new construction of the meaning of the word attach, and one that cannot be followed by any fair minded person. There is no case reported in any of the reports of this State or any other state, that tends to support this contention of the respondent. The respondent is forced by the uncontroverted facts in this case to resort to this construction in order to have this conviction affirmed.

      John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
    Under the seventh, twelfth and thirteenth grounds of the motion for a new trial, appellant complains that the trial court erred in refusing to give the demurrers to the evidence offered at the close of the State’s case and at the close of all the evidence herein. There was no error whatever in overruling these two demurrers. The testimony in the case conclusively showed the defendant to be guilty, at least of petit larceny, and the only question in this case of any serious nature whatever is the question as to whether or not the testimony showed the defendant to be guilty of robbery in the first degree. That testimony showed that this money was taken from the person of Herman Bock-hold by the defendant thrusting his hand in the pocket of the prosecuting witness and pulling the money therefrom. The testimony of the prosecuting witness was to the effect that he suffered the money to be taken because of fear of an immediate injury being inflicted to his person by the defendant Parker and his accomplice Settles. The only question in this case, therefore, meriting consideration is whether or not the testimony of the prosecuting witness is a sufficient showing of violence or of putting in fear of an immediate injury to the person of the prosecuting witness. In this connection we call the court’s attention to the cases of State v. Broderick, 59 Mo. 319, and State v. "Weinhardt, 253 Mo. 629. 34 Cyc. 1799; State v. Montgomery, 109 Mo. 645, 32 Am. St. 684; Colbey v. State, 46 Pla. 112, 110 Am. St. 87; Mahoney v. People, 3 Hun (N. Y.), 202; Comm. v. Davis, 23 Ky. L. Rep. 1717; People v. Klein, 113 111. 596; Smith v. State, 117 Gra. 320; People v. Campbell, 234 111. 391, 123 Am. St. 107; State v. McCune, 5 R. I. 60, 70 Am. Dec. 176; Evans v. State, 80 Ala. 4; Snyder v. Commonwealth, 21 Ky. L. Rep. 1538; Davis v. Comm., 21 Ky. L. Rep. 1295; State v. Nicholson, 124 N. C. 820; Comm. v. Titsworth, 30 Ky. L. Rep. 402; State v. Carr, 43 La. 418; Jones v. Comm., 112 Ky. 689, 23 Ky. L. Rep. 2081, 99 Am. St. 330, 57 L. R. A. 432; Stockton v. Comm., 125 Ky. 268, 30 Ky. L. Rep. 1302; State v. Sanders, 14 N. D. 203; Britt v. State, 7 Humphr. (Tenn.) 45; Coffelt v. State, 27 Tes. App. 608, 11 Am. St. Rep. 205. In view of the authorities hereinbefore cited, we insist that'the trial court properly overruled the demurrers to the evidence offered by the defendant, and that 'under the testimony the defendant was justly and rightly convicted of robbery in the first degree.
   FARIS, J.

Defendant, convicted in the circuit court of Marion county of robbery in the first degree, after the usual motions for a new trial and in arrest, appeals. The punishment assessed upon conviction was imprisonment in the penitentiary for a term of five years.

The facts developed upon the trial so far as they are pertinent to the matters it has become necessary for us to discuss in the opinion, were substantially as follows:

In the afternoon of the 15th of February, 1913, one Herman Buckhold, the man alleged to have been robbed, and who is the prosecuting witness herein, was in the city of Hannibal for the purpose of selling a load of corn and of cashing a check which he had received for a carload of hay. This check was for the sum .of $120 and a few odd cents. The proceeds were paid to said Buckhold in cash, which consisted, odd cents excepted, of twelve ten dollars bills. Shortly after Buckhold obtained this money, defendant sold him a pair of eye glasses for the sum of one dollar. In the course of the sale of these eye glasses to Buck-hold, and while paying defendant therefor, the money in the possession of Buckhold was seen by defendant. Some little time thereafter, on the same afternoon and about three o ’clock, Buckhold left Hannibal and started upon his return to Ms residence, the same being some ten or eleven miles in a northwesterly direction from Hannibal. "While Buckhold was in Hannibal and between the time of his arrival there, which was about noon, and the time of his departure therefrom, which was about three o’clock, he had drunk some four glasses of whiskey, all of which glasses he ingenuously admits were full ones. On leaving Haninbal he purchased a pint of whiskey, from which, however, prior to the events hereinafter detailed, he swears he did not drink.

Shortly after Buckhold left Hannibal the defendant Parker and one Henry Settle hired a horse and buggy and left Hannibal, ostensibly and as they stated to the liveryman, for the purpose of going to the Oak-wood Fair Ground, the same being some two miles from Hannibal, but in a different direction from that taken by Buckhold in going home.

At about the hour of five o’clock defendant and said Settle caught up with Buckhold on'the public road, at a point some seven miles distant from Plannibal and engaged in conversation with him with reference to the sort of land to be found in the neighborhood; leaving upon the mind of Buckhold, without (so far as the record discloses) saying so in direct or explicit language, the impression that they were land buyers. Buckhold stopped his wagon; the defendant and Settle drove in front of his team and stopped their buggy, leaving the buggy across the road in such wise as to obstruct the passage of Buckhold’s wagon. After some other conversation as to the soil, the country and .the scenery within view, defendant and Settle asked Buckhold to drink a bottle of beer with them. Buck-hold at first demurred, but subsequently partially acquiesced ; b.ut upon defendant and Settle being unable, as they said, to find a bottle opener, Buckhold invited them to have a drink with him from the pint bottle of whiskey which he had theretofore purchased in Hannibal, and which he says had not up to that time been opened. Both defendant and Settle took a small drink of whiskey from Buckhold’s bottle; thereafter defendant came up on one side of Buckhold’s wagon and Settle upon the other. Settle engaged Buckhold in a conversation relative to changing a twenty dollar bill for him, and while Buckhold was engaged in this conversation with Settle and somewhat engrossed therein, and while he was leaning over toward Settle, who was on the left hand side of the wagon, the defendant climbed upon the front right wheel of the wagon, placed Ms hand in Buckhold’s righthand pantaloons pocket, and abstracted therefrom tbe sum of $2.25 in silver coin. Upon becoming aware of tbe actions of defendant, Buckhold struck with bis whip at defendant and at bis team. Tbe team thereupon started very rapidly and defendant was thrown,, or stepped, from tbe wheel.

Since the facts which transpired at tbe immediate moment of tbe alleged robbery are pertinent and decisive, and since Buckhold is tbe only witness who testifies touching them, we in fairness set out below from bis testimony what be said and all be said as to tbe manner in which defendant committed tbe alleged robbery :

“Q. In your own way tell tbe jury just bow it happened? A. You-see, while I was talking to Mr. Settle Mr. Parker got up on tbe wheel unbeknown to me and got bis band in my pocket, and I never bad any idea until I felt bis band in my pocket and felt tbe money jingle that be was upon tbe wheel at all. Well, I bad tbe whip in my band and I just gave him a punch and tbe team started moving and tbe wheel turned and Mr. Parker was off. I guess I ivas scared. 1 didn’t get scared until 1 got away.”

On cross-examination, touching this same matter tbe prosecuting witness said:

“They brought tbe bottle back and one wanted me to change tbe money and tbe other ran bis hand in my pocket. I was leaning over when I felt someone’s band in my pocket. While I was talking to Settle I felt what I thought was a.man’s band in my pocket. My hair began to get ‘curly’ and I got frightened after the horses started to run. I didn’t think there was anything wrong until be got bis band into my pocket, then I thought it was time for me to get away from him. That was the time when I noticed danger, when be got bis band in my pocket and took my money. That is all I can say. That is tbe time when I got scared and dug out. I got scared right then. I didn’t see him when he put his hand in my pocket.”

Many objections are raised by the defendant, but the above statement and the above excerpts from the testimony of the prosecuting witness illustrate the only one of the alleged errors urged upon us-by defendant which we regard as pertinent. Mention of other matters complained of would do no good; such mention would be utterly useless either as an aid to the illumination of this case, or as an aid to -the science of jurisprudence, and would but serve to obscure the one decisive point in the case which we discuss in the opinion. If other facts, however, illustrative of this point, shall become necessary, we will advert to them and set them out in the discuásion of the legal phase involved.

OPINION.

The chief contention made by the defendant is that the proof does not show that he is guilty of robbery in the first degree, with which crime he was charged in the information and of which he was convicted. At the close of the State’s case and again at the close of all of the evidence, defendant prayed the court to so instruct the jury, and the court refused We set out in the statement all of the testimony bearing upon this contention. to do SO.

The crime of robbery in the first degree is defined by our statute thus:

“Sec. 4530. 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 injuiy to his person . . . shall be adjudged guilty of robbery in the first degree.”

In passing, though not pertinent except as throwing light upon the cases which we cite which were adjudged at common law, we may say that at common law the elements of robbery were practically the same as under the statute above quoted. [State v. Lawler, 130 Mo. l. c. 371.]

Our statute denounces but one offense, which, however, may be committed, as to the phase here in question in the instant .case, in two ways : by the felonious taking of the property of another from his person, (á) by violence, or (b) by putting him in fear of some immediate injury to his person. [State v. Smith, 119 Mo. l. c. 446.]

Manifestly no lengthy or involved argument is necessary to prove under the facts in the instant case, that Buckhold was not, at or prior to the taking of the silver coins from his pocket, put in fear by defendant, or by his accomplice Settle, of any immediate injury to his person. The fright of him who is robbed must be under the law an objective fright as contradistinguished from subjective fright; it must have been due, in short, to some act on the part of the accused, and not arise from the mere temperamental timidity of the person whose property happens to be stolen from his person or presence. [State v. Weinhardt, 253 Mo. 629.] Here defendant merely put his hand into the pocket of Buckhold while his accomplice Settle engaged him in conversation. The act of theft was wholly accomplished before Buckhold got frightened. No blow was struck or threatened; no weapon was used or shown, nor was any threat of injury, either immediate or remote, uttered by defendant. Robbery by putting in fear then clearly falls out of the case. In fact, learned counsel for the State do not urge this phase of robbery. Tne State does contend, however, that the force used by defendant in inserting his hand into the pocket of Buckhold and in drawing from such pocket the stolen silver coins was and constituted such violence under our statute as to make out robbery in the first degree. In this contention we cannot agree. Here the coins stolen were lying loose in Buckhold’s pocket; no force or violence was necessary' to separate them from Buckliold.

Onr attention is called to the case of State v. Broderick, 59 Mo. 318; but in that case the watchcliain of the prosecuting witness was larcenously taken by defendant Broderick by forcibly tearing* it from the vest and from the watch, to both of which it was attached. When the prosecuting witness attempted to recover the chain the defendant struck him and ran. It is fairly clear from the reported case that the striking' of the prosecuting witness by the defendant Broderick was after the breaking loose of the chain from the person and after the leg'al asportation of the chain was consummated. We are not aided at all then by this latter phase of force and violence, since force to prevent arrest, or to prevent recovery of the stolen property after the asportation of the property is complete and after detachment from the person of the owner of the property is consummated, are not necessary elements of robbery in the first degree. [Kelley’s Crim. Law, 629; Thomas v. State, 91 Ala. 34; Routt v. State, 61 Ark. 594; People v. Stevens, 141 Cal. 488; Dawson v. Com., 74 S. W. (Ky.) 701.] In other words, the violence used in the robbery must precede, of be contemporaneous with the taking* of the property. [34 Cyc. 1799.] The presence of force or violence of the latter sort, will not serve to make that act of larceny robbery, which without such belated act of force would have been but ordinary larceny. [Thomas v. State, supra; Kelley’s. Crim. Law, supra; 34 Cyc. and cases cited, supra.]

Our court held in the Broderick case, supra, that defendant therein was properly convicted of robbery. The distinction between the facts in that case and those in the instant case is obvious. In the Broderick case the chain was attached to the clothing of the prosecutor and to a -watch., inferably in a pocket of the latter’s clothing. In order to remove this chain the thief had to nse sufficient force to break it loose both from prosecutor’s buttonhole and from his watch; here the coins stolen were merely stealthily lifted from Buck-hold’s pocket where they were lying unattached to his person. Such filching of loose property from the pocket with no more force than is necessary to lift and remove the property from the pocket is not robbery, but larceny. [Colbey v. State, 46 Fla. 112; Spencer v. State, 106 Ga. 692; Fanning v. State, 66 Ga. 167; Woodard v. State, 9 Tex. App. 412; Johnson v. Com., 24 Gratt. 555; Regina v. Walls, 2 Car. & Kir. 214; Secs. 4538, 4539, R. S. 1909.] The difference between robbery and theft from the person of another which our Legislature has formally and fully recognized by the enaction of said sections 4538 and 4539, Revised Statutes 1909 (amended, Laws 1911, pp. 193 and 194), lies in the force used or fear induced, or in the lack thereof. [People v. Campbell, 234 Ill. 391; Hall v. People, 171 Ill. 540; Rex v. Gray, 2 East P. C. 708; Rex v. Steward, 2 East P. C. 702; Rex v. McCawley, 1 Leach, 287; Rex v. Gnosil, 1 Car. & P. 304; People v. Church, 116 Cal. 300; Jackson v. State, 69 Ala. 240; Fanning v. State, supra; Shinn v. State, 64 Ind. 13; Com. v. Ordway, 12 Cush. 270.] Larceny committed by snatching or jerking the property of another person from such owner’s person where such property is so attached to the person or clothing as to afford resistance, or where there is an antecedent or contemporaneous struggle over the taking of the property and asportation from the owner is accomplished by superior force, is robbery (State v. Moore, 106 Mo. 480; State v. Broderick, 59 Mo. 318; Rex v. Moore, 1 Leach, 335; Rex v. Lapier, 1 Leach, 320; Rex v. Mason, Russ. & Ry. 419; Usom v. State, 97 Ga. 194; Smith v. State, 117 Ga. 320; State v. McCune, 5 R. I. 60; Jackson v. State, 114 Ga. 826; State v. Donohue, 59 Atl. 12; People v. Stevens, 141 Cal. 488; Colbey v. State, 46 Fla. 112; McDow v. State, 110 Ga. 293; Klein v. People, 113 Ill. 596; State v. Miller, 53 Kan. 324; Brown v. Com., 135 Ky. 635); but where the property is taken from the person by merely lifting it from the person or pocket, then it is larceny merely and the prosecution should be had under either section 4538 or section 4539, as amended, according as the property stolen may or may not exceed the value of thirty dollars. If the act of defendant in this case be robbery, then the Legislature did a vain and futile thing in enacting so much of sections 45-38 and 4539, supra, as denounces thefts from the person.

It follows, that since upon the facts shown defendant was not guilty of robbery, the instruction prayed by defendant in the nature of a demurrer to the evidence should have been given.

This view renders a reversal of the case necessary. We shall not reverse the same and discharge the defendant, however,- since it has been held that under an indictment for robbery the accused may properly in a proper case, be convicted of larceny. [State v. Brannon, 55 Mo. 63; 25 Cyc. 103 and cases cited; State v. Keeland, 90 Mo. 337.] Pursuant to the prayer in the appellant’s brief we will reverse and remand the case for such action as the State may be upon the law and the facts advised to take. Other errors alleged we neecl not now notice, as they are such as will not necessarily happen again.

In passing, and in view of the attack made below upon the goodness of the information, but which attack seems to have been practically abandoned here by defendant, we may add that in our opinion the information is sufficient. [State v. Montgomery, 109 Mo. 645; State v. Calvert, 209 Mo. 280; State v. Kennedy, 154 Mo. 268.] It contains, it may be, words of surplusage added by learned counsel who drew it, out of the abundance of caution, but it is nevertheless good. [State v. Flynn, 258 Mo. 211; Kelley’s Crim. Law and Prac. 625.] Let the case be reversed and remanded.

Walker, P. J., and Brotan, J., concur.