State v. Hoyt

24 S.W.2d 981, 324 Mo. 837, 1930 Mo. LEXIS 534

• Court: Supreme Court of Missouri
• Decided: February 19, 1930
• Status: Published

Opinions

WALKER, J.

The appellant was charged by indictment in the Circuit Court of Jackson County with robbery in the first degree. Incorporated in this indictment are several averments of former convictions of felonies in other jurisdictions, for which it is sought to punish the anpellant under the Habitual Criminal Act.

The averments of these former convictions, in addition to the charge ot robberv in the first degree, under Section 3307, Revised Statutes 1919. were as follows:

(11 That defendant had been sentenced to two years and six mouths’ imnrisonment in flip State Penitentiary in California under p chame of robberv. had served his sentence arid was discharged from that institution : (2) that defendant had been sentenced to six months in the county jail of Jackson County, Missouri, had served Ms sentence and was duly and legally discharged; (3) that defendant was sentenced to two years’ imprisonment in the Missouri Penitentiary from Livingston County under a charge of possession of burglary tools, bad served Ms sentence and was discharged; (4) that defendant was sentenced to ten years in the Umted States Penitentiary at Atlanta, Georgia, under a charge of a conspiracy and violation of the Interstate Commerce laws, had served his sentence and was discharged. Appellant filed a motion to strike out the 1st, 2nd and 4th of these averments, which the trial court sustained as to the 1st-and 2nd, but overruled as to the 4th. Upon a trial to a jury the appellant was convicted and sentenced to seventeen years’ imprisonment in the penitentiary. From this judgment he appeals to this court.

The assignments of error on which the appellant relies to reverse this case are as follows:

(1) That the action of the trial court in striking out on the motion of the appellant the averment of Ms former conviction of a felony in the State of California and in striking out the averment of his conviction and sentence to imprisonment in a county jail in Jackson County, rendered the indictment a nullity.

(2) That the appellant’s conviction cannot he sustained because he was encouraged and incited hv the officers of the law to commit the crime with which he is charged.

(3) That under the law the facts disclosed in the testimony do not warrant the conviction of the appellant.

I. As to the first assignment, the contention of the appellant is, in effect, tbat the striking out of portions of the indictment at bis instance and on his motion on the. ground that the portions stricken out do not charge such former convictions as will bring the appellant within the purview of the Habitual Criminal Act and despite the fact, that the crime for which he is on trial was properly charged and the other averments were sufficient, if proved, to subject him to punishment under the. Habitual Criminal Act. tbat by reason of the court’s action in sustaining the appellant’s motion the indictment becomes a nullity and the court loses its inrisdie.tion to try him for the principal charge and assess his punishment under other averments which properlv subject, him to the provisions of the Habitual Criminal Act. The gist of this contention is simply that an immaterial change made by a trial court in an indictment upon the motion of the appellant, on the ground of the insnfficiencv of the matter stricken, out. leaving a charge otherwise not snlpeet to obiection will nnllifv «uch charge. Tbe following cases a to r>Hpri in support of this contention: Ex parte Bain. 121 U. S. 1, 30 L. Ed. 849; Dodge v. United States. 258 Fed. 300; Stewart v. United States, 12 Fed. (2d) 524; Garrett v. United States, 17 Fed. (2d) 479.

It may be conceded that an indictment under Federal authority as at common law, after it has been returned by a grand jury, is inviolable. That rule, however, has never obtained in this jurisdiction, nor in any of the other states with whose rulings we are familiar. In many states express statutory provisions are found authorizing amendments as to the form or substance of indictments where the same may be made without prejudice to the defendant. We have no statute in this language, but tantamount thereto is the provision in our criminal statute of jeofails, Section 3908, Revised Statutes-1919, to the effect that no indictment shall be held insufficient “for any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and the person charged.” 'While specific reasons are pleaded by the appellant in his motion to strike out portions of the indictment, the substance of or the conclusion to be drawn from these reasons is that the parts sought to be stricken do not state facts which, if shown, will subject the appellant to punishment under the Habitual Criminal Act, or in short, that they are surplusage. Thus classified it was immaterial whether they were stricken out by the court or ignored as they might have been at the trial.

In any event, the appellant, without considering the fact that the parts of the indictment were stricken out on his motion, has suffered no prejudice and wdll not in this behalf be heard to complain. This is especially true where, as at bar, the parts of the indictment not stricken out not only correctly charge the principal offense but, in addition, plead former convictions which authorize a sentence under the Habitual Criminal Act.

II. Appellant contends that his conviction should not be affirmed on the ground that he was encouraged and incited by officers of the law to participate in the offense of which he was convicted. The facts in the case do not sustain the appellant in this contention. They are that certain representatives of a jewelry company in Kansas City, learning that an effort would be made to rob a diamond salesman who was scheduled to visit their store soon thereafter, employed a detective, named Nichols, to visit their place of business carrying a jewelry case, to impersonate such a salesman. It does not' appear that the. identity of the proposed robbers was then known. The detective visited the store as directed to afford opportunities for the robbery. No one appeared and he departed carrying the jewelry case. When several blocks distant from the jewelry store he was accosted by two men, who covered him with pistols and commanded him to get info a car which they had in waiting, saying: “We know who you are; get into Lilis car and lie clown.” This he did and some shooting occurred, presumably (but not shown by the facts) between, the robbers and the police. In this melee Nichols was shot in the arm. Those in charge of the car then fled with Nichols to liosedale, Kansas, where he was ordered out of the car and the jewelry case taken from him.

Appellant was subsequently arrested and identified as one of the men who robbed Nichols. There is nothing in this testimony to show that officers of the law conceived or planned to lure the appellant to commit the robbery. His act was committed after the contemplated plan of the robbers, as reported to the jewelry store, had failed. There is nothing to show that appellant’s identity as one of those who planned to commit the crime was known, either to the officers or the representatives of the jewelry store. The criminal intent therefore to commit the crime must have originated in the mind of the appellant and hence his contention is without foundation. Numerous cases sustain this conclusion. [State v. Decker, 14 S. W. (2d) 618; State v. Sheeler, 7 S. W. (2d) 340; State v. Murphy, 6 S. W. (2d) 877.]

There being no evidence to sustain the contention that the appellant was. influenced or entrapped to commit the crime and the essential facts to constitute robbery having been shown, with "the attendant proof of his former convictions, the verdict rendered against him was not erroneous. No other contentions are made which are entitled to consideration.

The judgment, therefore, should be affirmed.

Blair, P. J., concurs, and also concurs in sepai*ate concurring opinion of White, J.; White, J., concurs in the separate opinion.