Summary
In McCarthy v. Eidson, Banc, Mo., 262 S.W.2d 52, it was held that an information charging first degree robbery was sufficient where it was alleged that the defendant feloniously robbed one Simmons of $30 belonging to one Petrie, even though it was not alleged that Simmons was the agent of Petrie; this, on the theory, that such a requirement was one merely of "description" and not one of limitation; that an inference of agency was properly drawn, and that defendant was fully informed of the nature of the charge.
Summary of this case from State v. WilwordingOpinion
No. 44022.
November 9, 1953.
No appearance for petitioner.
John M. Dalton, Atty. Gen., Samuel M. Watson, Asst. Atty. Gen., for respondent.
Habeas corpus: In the circuit court of Jefferson County, Missouri, the petitioner pleaded guilty to an information charging him with the crime of robbery in the first degree, and his punishment was assessed at ten years' imprisonment in the state penitentiary.
The information to which the petitioner pleaded guilty on February 23, 1950, was as follows:
"J. W. Thurman, Prosecuting Attorney within and for the County of Jefferson, in the State of Missouri, informs the court that Lawrence Robert Coleman, Robert James Love and Edward Junior McCarthy on the 6th day of February, 1950, at and in the County of Jefferson and State of Missouri, did then and there, with specific criminal intent, wilfully, unlawfully and feloniously in and upon one Robert Simmons unlawfully and feloniously did make an assault and $30.00 in silver and currency of the value of $30.00, the property of Earl Petrie, from the person, in the presence and against the will of the said Robert Simmons then and there by putting the said Robert Simmons in fear of some immediate injury to his person, feloniously did rob, steal, take and carry away, contrary to the form of statute in such cases made and provided, and against the peace and dignity of the State of Missouri."
Petitioner contends that this information is fatally defective because it did not allege that Robert Simmons was the servant, clerk or agent of Earl Petrie, the owner of the property taken from Simmons. Section 560.120 RSMo 1949, V.A.M.S., provides that every person "who shall be convicted of feloniously taking the property of another from the person of his wife, servant, clerk or agent, in charge thereof, * * * by putting him or her in fear of some immediate injury to his or her person, shall be adjudged guilty of robbery in the first degree."
This exact contention was ruled adversely to petitioner in the case of State v. Wilson, Mo.Sup., 237 S.W. 776. In that case the indictment stated that defendant "with force and arms, in and upon one Herbert W. Allen, unlawfully and feloniously did make an assault, and $3,163.23, lawful money of the United States, * * * the money and personal property of Daniel Frankel and Julius Lyons, copartners doing business under the style and firm name of Frankel, Frank Co." In holding the indictment sufficient, we said:
"An examination of the indictment discloses its failure to allege that Allen was a 'servant, clerk or agent in charge thereof' in accordance with the language of the statute (section 3307, R.S. 1919 [V.A.M.S. 560.120]).
"Section 3908, R.S. 1919 [V.A.M.S. § 545.030], commonly known as the Statute of Jeofails, affirms the validity of all indictments or informations where the defects or imperfections do 'not tend to the prejudice of the substantial rights of the defendant upon the merits.' The indictment informed defendant that he was charged with taking from one Allen with force and violence and against his will the sum named, and that said money was the property of Frankel, Frank Co. This was sufficient, and the inference that Allen was agent, servant, or clerk, of the owners appeared without the formal allegation. This does not violate the rule of criminal pleading to the effect that nothing shall be left to intendment or implication, and that the defendant shall be clearly apprised of the nature and cause of the accusation against him. State v. Stegner, 276 Mo. 427, 207 S.W. 826; State v. Massey, 274 Mo. 578, 204 S.W. 541.
"The rule that nothing in an indictment must be left to intendment or implication refers to such necessary allegations as will inform the defendant of the nature of the charge. State v. Hascall, 284 Mo. 607, 226 S.W. 18. The indictment in question was returned under section 3307, R.S. 1919, and was sufficient without the allegation mentioned." 237 S.W. loc.cit. 777.
The case of State v. Davis, Mo.Sup., 58 S.W.2d 305. loc.cit. 307, is another case in which this court ruled adversely to petitioner's contention in the case at bar. In ruling the Davis case, we said:
"The indictment contains all the elements of the charge of robbery in the first degree, set out in the statute, section 4058, R.S.Mo. 1929 (Mo.St.Ann. § 4058) [V.A.M.S. § 560.120], save that it does not in terms describe Frank B. Moore as the servant, clerk, or agent of the Interstate National Bank. This court expressly held, in State v. Wilson (Mo.Sup.) 237 S.W. 776, that this omission is cured by the Statute of Jeofails, section 3563, R.S.Mo. 1929 (Mo.St.Ann. § 3563) [V.A.M.S. 545.030]. The indictment informed the defendant that he and others were charged with taking from Frank B. Moore, with force and arms and against his will, the sum named and that this money was the property of the Interstate National Bank. The inference that Moore was the servant, clerk, or agent of the bank may properly be drawn without violation of the rule that nothing shall be left to intendment. State v. Wilson, supra, and cases cited. This omission aside, the indictment was sufficient in form and substance."
We are unable to distinguish the Wilson and Davis cases from the case at bar.
In the case of State v. Craft, 299 Mo. 332, 253 S.W. 224, loc.cit. 226-227, we said:
"The gravamen of the offense consists in the taking by violence, or by putting in fear, the money or property of another from one who was at the time in the lawful possession of the same. Whether that one was the owner or the legal custodian is immaterial so far as the charging of the offense is concerned. The words of the statute, therefore, defining those from whom the unlawful taking of property shall constitute robbery, may be disregarded as words of description rather than of limitation. This we have held by implication in recognizing the validity of indictments or informations which did not allege the custody of the property taken to have been in possession of one of those designated in the statute. State v. Wilson (Mo.Sup.) 237 S.W. 776; State v. Carroll, 214 Mo. 392, 113 S.W. 1051, 21 L.R.A., N.S., 311. In fact, so far as the sufficiency of the charge is concerned, the ownership of the property taken may be laid in the one in possession of the same at the time of the robbery. State v. Montgomery, 181 Mo. 19, 79 S.W. 693, 67 L.R.A. 343, 2 Ann.Cas. 261; State v. Lamb, 141 Mo. [298] 301, 42 S.W. 827; State v. Reich [293 Mo. 415], 239 S.W. 835; State v. Flynn, 258 Mo. 211, 167 S.W. 516. It is immaterial whether the one in possession of the property holds it, at the time of the robbery, as owner or bailee. State v. Huffman (Mo.Sup.) 238 S.W. 430."
In Commonwealth v. Weiner, 255 Mass. 506, 509, 152 N.E. 359, 360, the Supreme Court of Massachusetts said:
"The essence of robbery is the exertion of force, actual or constructive, against another in order to take personal property of any value whatsoever, with the intention of stealing it, from the protection which the person of that other affords. * * * It is not affected by the state of the legal title to the goods taken."
In our case of State v. Fitzsimmons, 338 Mo. 230, 89 S.W.2d 670, we approved the above quotation from the Massachusetts case.
Under the information before us, we think the only reasonable inference to be drawn is that Simmons was the agent of Petrie, as it was Petrie's property that was stolen from Simmons. There is certainly nothing in this record that would show that Simmons did not have lawful possession of the property taken from him. Certainly, the petitioner was not prejudiced by the failure of the information to state that Simmons was the agent or servant of Petrie. Robbery in the first degree was accomplished when the petitioner put Simmons in fear of some immediate injury to his person and did rob, steal and take away the personal property that was in his possession. We hold that the information was sufficient to sustain the judgment and sentence of the court.
The circuit clerk of Jefferson County, in entering of record the sentence and judgment of the circuit court, erroneously stated that petitioner "had heretofore pleaded guilty to the crime of Armed Robbery under an information against him." On February 12, 1953, the prosecuting attorney of Jefferson County filed a motion for an "Amendment of Judgment and Nunc Pro Tune Entry," which motion was sustained by the trial court on that date. The record shows "that said defendant pleaded guilty to the offense as charged being Robbery in the First Degree, the Court therefore sustains the motion of judgment nunc pro tunc and said judgment is now amended nunc pro tunc as of the 23rd day of February, 1950, to read as follows and the Court now orders and directs the Clerk of the Court to enter the following judgment in the cause: * * *." The judgment as amended shows that petitioner pleaded guilty to the crime of robbery in the first degree.
The circuit clerk's records show that the petitioner pleaded guilty on February 23, 1950, after waiving formal arraignment, and was formally sentenced to ten years in the penitentiary. The information charged petitioner with robbery in the first degree and when he pleaded guilty to the information, of course, he pleaded guilty to the crime of robbery in the first degree. Our statutes do not define any crime as "armed robbery." The original judgment that was entered was not the judgment of the court but, rather, a clerical error of the circuit clerk. Under these circumstances the court may, at any time, correct a judgment entry so as to make the judgment that which the court, in fact, rendered. Davison v. Davison, 207 Mo. 702, 106 S.W. 1; Greggers v. Gleason, 224 Mo.App. 1108, 29 S.W.2d 183. Since the original judgment entry was not the judgment of the court, the trial court could properly enter the judgment actually rendered by a nunc pro tunc order at any time without notice to the petitioner. In this case a mere inspection of the court records would show the original judgment entry was not the judgment of the court. Ex parte Mitts, 220 Mo.App. 825, 278 S.W. 1047; Conrath v. Houchin, 226 Mo.App. 261, 34 S.W.2d 190; Pulitzer Publishing Co. v. Allen, 134 Mo.App. 229, 113 S.W. 1159.
From what we have said, it follows that petitioner should be remanded to the custody of the respondent. It is so ordered.
All concur except ELLISON, J., dubitante.