The appellants, with one Walter Shirer, were charged with having murdered one Benjamin Schowe, in Franklin County, on the twentieth day of November, 1920. On a trial in that county, on December 15, 1920, the jury returned the following verdict:
"We, the jury, find all of the defendants and each of them guilty of murder in the first degree and assess the punishment of John Carroll and Charles W. Jocoy, alias Joseph Coyler, at death, and assess the punishment of Walter F. Shirer, alias Ralph Davidson, at imprisonment in the penitentiary for life.
"F.L. INGALLS, Foreman."
Carroll and Jocoy thereupon appealed in due form to this court. Shirer did not appeal.
John Carroll and Walter Shirer became acquainted with each other in Uniontown, Pennsylvania. Armed with automatic revolvers they started west and arrived in the City of Saint Louis Wednesday morning, November 17, 1920, three days before the homicide which occurred the Saturday following. In Saint Louis they met the other defendant, Jocoy. The three decided to "rob some saloons," but after a day or two of investigation they found conditions unfavorable. They then hired a taxi and forced the chauffeur to drive then into the country, heading for Sedalia. The machine stalled on a hillside, and they abandoned it. In the night they attempted to steal a Ford from a farmer. The farmer was awakened and they retreated. Finally they took a Ford from a man who was driving along the road. They drove westward into Washington, and there robbed a man of *Page 401 six dollars, with which money they bought gasoline. They continued west in their stolen Ford, apparently driving all night Friday night. Some time that night, or Saturday morning, they had a blowout, went to a farmer's house for breakfast and telephoned to a garage at Berger for a tire, tube and some spark plugs. At that time they were west of Berger in Franklin County, near the county line, on the road toward Hermann in Gasconade County.
Benjamin Schowe was the owner of a garage at Berger, and received the telephone message. Irvin H. Perle was present and had a Ford machine. Schowe and Perle thereupon went in Perle's machine to the scene of the breakdown, with tires, tubes and spark plugs, for the purpose of making the repairs. In the meantime the three defendants had finished their breakfast at the farmhouse, and requested Perle and Schowe to place two tires and two tubes on the machine which the defendants had. While Schowe and Perle were working on the car, Carroll looked over Perle's car, which stood at a little distance from where Schowe and Perle were at work. Jocoy and Shirer walked over to Carroll, and the three defendants had a conversation in an undertone, which Perle and Schowe could not understand. After the repairs were made and the machine made ready for traveling, Schowe figured up his bill, then the three defendants drew their revolvers and ordered Schowe and Perle to put up their hands, an order with which they complied. Perle had brought in his car a single-barrel shotgun, which one of the defendants took and put in the car which they had. Shirer then was left in charge of the repaired car, with the engine running. Perle and Schowe were ordered to get in Perle's car and drive towards Berger and not "make a crooked move." Carroll and Jocoy got in the back seat with their revolvers drawn. Carroll enlivened the apprehension of Perle and Schowe by saying: "These backwoods people better not monkey with me, by the time I get through with this western part of *Page 402 the country they wont know me." After Perle had driven about a quarter of a mile towards Berger, the defendants began to look for a place to turn out of the main road. Finding none they ordered Perle to turn the car around and drive the other way. In attempting to turn, the car was backed off into a ditch so that he was unable to move it. While Perle and Schowe were trying to get the car in motion, another automobile drove along the road. Carroll concealed his revolver and said, "There goes a machine; none of you fellows make a move; stand still," and the car passed on. Finding Perle's car could not be started, the appellants ordered Schowe and Perle to get out of the machine and walk back in the direction of the other car. As they had walked along they saw a hay shed near the road, and one of the appellants said, "In back of that hay shed would be a good place." Defendants afterwards said they intended to tie Schowe and Perle there until they could get away. Schowe then told the defendants they could have the tires and supplies for nothing if they would just let him go. One of the appellants replied that they knew they could get the tires for nothing. Immediately Schowe broke away and started to run back towards Berger. A shot was fired, either by Jocoy or Carroll, and Schowe was struck, the ball passing through his body. One of the defendants then commanded Perle to run; he complied, and they fired several shots which did not take effect. They said they fired into the air. Perle came up with Schowe, who was rapidly weakening, and soon fell or sat by the roadside. Perle called to some men at a farm house on the hill and told them Schowe had been shot.
There was an elevation or hill between where Schowe was shot and where Shirer was left with the other car. Shirer kept the engine running and while the events just related were occurring he ran to the top of the hill two or three times to see what was going on. After Schowe was shot and Perle had run away, Carroll and Jocoy hurried to Shirer, and the three got in the machine and drove rapidly west. *Page 403
In the meantime the alarm had been sounded and the chase began. The defendants drove their car as far as Hermann in Gasconade County, there abandoned it, and took to the cornfield. The pursuit was so hot that they hid in a corn shock. The extemporized posse surrounded them and compelled them to come out, with hands up. Their automatic revolvers were found covered with dirt, under the corn shock. Schowe was taken back to Berger and died on the same day he was shot; the evidence showed that the shooting took place just east of the county line within Franklin County.
On the morning of the twenty-second the three defendants, then in custody, signified a desire to make a statement. Jocoy gave his name as Coyler, and Shirer gave his name as Davidson. They were informed that they were not obliged to make statements, and that any statements they might make would be used against them. In the presence of R.W. Otto, Prosecuting Attorney of Franklin County, and James W. Booth, assistant, each of the defendants made a statement which was taken down in shorthand by W.L. Cole, court reporter. These statements were transcribed and afterwards identified by Cole, who swore that they were true and correct statements of what each of the defendants said. In these statements defendants related the facts about the meeting of Carroll and Shirer in Uniontown, Pennsylvania, and coming west; their meeting Jocoy, and the search for saloons to rob; their stealing the automobile, and robbing a man of six dollars in Washington, and telephoning to the garage; they also told about the repair of the machine, and other events, including the shooting of Schowe, and their capture in the corn shock; all substantially as stated above and related by the other witnesses.
The defendants asserted that they only intended to tie up Perle and Schowe until they could get away, but admitted that they intended to rob Schowe of the tires and supplies which had been furnished. These statements were read to the jury. *Page 404
The defendants did not testify. They introduced proof to show they had been in the United States Army, had served with the A.E.F. in France; each of them had been honorably discharged from the service. Mary Jocoy, mother of the defendant Jocoy, testified as to her son's service in the army, his good habits, and good conduct previous to his engaging in the crimes shown in the evidence here. Carroll produced a number of depositions, taken at Uniontown, Pennsylvania, to show that he had a good reputation for peace and good order, and as a law-abiding citizen. Most of the witnesses who thus testified by deposition said they had never heard his reputation discussed, therefore inferred that it was good. Carroll's father testified to his son's previous good behavior; he swore that John Carroll was twenty-two years old. Jocoy was, perhaps, a little older.
I. The defendants filed a motion to quash the information for several reasons, one of which was that it was not verified by the affidavit of the Prosecuting Attorney of Franklin County. The information states that it is upon the officialInformation. oath of Robert W. Otto, Prosecuting Attorney for Franklin County, and it is signed "Robert W. Otto, Prosecuting Attorney;" the affidavit by which the information was verified is signed "Robert W. Otto." The omission of a statement of his official character with his signature to the oath is immaterial, not prejudicial to the defendant and constituted no ground to quash. [State v. Ferguson, 278 Mo. l.c. 130; State v. Salts, 263 Mo. l.c. 313.]
It is further asserted by appellants that the information charges no offense known to the laws of the State of Missouri. It charges that November 20, 1920, in the County of Franklin, State of Missouri, John Carroll "feloniously, deliberately, premeditatedly and with malice aforethought did make an assault with a dangerous and deadly weapon, to-wit, an automatic pistol." etc. The information then alleges with sufficient particularity *Page 405 and directness the willful aiming and discharging of the weapon, and the striking of Benjamin Schowe, causing a wound from which Schowe died on the same day, and proceeds as follows:
"That Walter Shirer, alias Ralph Davidson, and Charles W. Jocoy, alias Joseph Coyler, before the said felony and murder was committed in the manner and form aforesaid and by the means aforesaid, at the time and place aforesaid, did then and there unlawfully, feloniously, wilfully, deliberately, premeditatedly and of their malice aforethought, incite, move, procure, abet, aid, counsel, hire and command him, the said John Carroll, to do and commit the said felony and murder aforesaid in the manner and form aforesaid and by the means aforesaid at the time and place aforesaid."
The information then proceeds to charge that the three defendants, in the manner and form aforesaid, did murder Benjamin Schowe. It sufficiently charges murder in the first degree against all three of the defendants. The allegation that Jocoy and Shirer were present aiding and abetting properly charges that they committed the murder. In this State there is no distinction between the principals and the accessories before the fact. [State v. Orrick, 106 Mo. 111; Section 3687, R.S. 1919.] An accessory under that section may be charged as principal. [State v. Schuchmann, 133 Mo. 111.] After stating that Shirer and Jocoy were aiding and abetting, the information charges them in direct terms with having committed the murder, making the proper charge of the crime under the statute. [State v. Sykes, 191 Mo. l.c. 79.]
II. After the statements of Carroll, Jocoy and Shirer were read to the jury, the defendants' counsel moved to strike out all that portion of Carroll's statement relating to the other robberies, on the ground that it showed the commission of otherOther offenses for which the defendants might be triedCrimes. *Page 406 and convicted. Evidence of crimes committed by a defendant, other than that for which he is on trial, may be shown for the purpose of establishing a common scheme or plan embracing the commission of two or more crimes so related to each other that the proof of one tends to establish proof of the others. [State v. Lewis,273 Mo. 531; State v. Bailey, 190 Mo. l.c. 280; State v. Cummins, 279 Mo. l.c. 207.]
Carroll's statement shows how he and Shirer, armed with automatics, met Jocoy, and the three "went down the street and looked around with intentions of robbing some saloons." They found nothing which favored their enterprise that night; the next morning they went out on Cherokee Street; "we looked things over out there and decided to go back that night and rob some saloons;" but they found no saloons which presented a favorable opportunity. They commandeered a taxi, impressed the driver, and drove westward. They abandoned the taxi, robbed a man in Saint Louis County of a Ford car, robbed a man in Washington of six dollars, while proceeding west; finally they attempted to rob Schowe of his tires and in that attempt murdered him. All this occurred in the course of two or three days. Carroll and Shirer arrived in Saint Louis Wednesday morning, and Saturday the murder was committed. That the three men were engaged in a common design to rob whenever opportunity presented, a definite, preconcerted plan to engage in a regular robbing expedition, appears from the language Carroll used. Evidence was admissible to prove whatever they did in pursuance of the general scheme which culminated in the murder.
Further, even if the evidence was not competent, the appellants did not make their objection in time. With full knowledge that such statements were in existence they waited until the statements of all three defendants were read to the jury; the objection came too late to be available. [State v. Frisby, 280 Mo. l.c. 83; State v. Levy, 262 Mo. l.c. 191; State v. Sykes, 191 Mo. l.c. 79; State v. Lehman, 175 Mo. l.c. 625.] *Page 407
III. The appellants assign error to the giving of Instruction Number One on behalf of the State, which authorized the jury to find a verdict of guilty if they found that the defendants entered into a conspiracy, agreement, or commonConspiracy. design to take the property of Schowe and Perle by violence and by putting them in fear; or, entered into a conspiracy or common design with each other to kill or to do the deceased or Perle some great bodily harm; and that in the prosecution of that common design, and while acting in concert, one of the defendants wilfully killed Benjamin Schowe, etc., the jury could find all the defendants guilty of murder in the first degree.
Complaint is made that the instruction is broader than the allegation in the information because the information does not allege that there is any conspiracy. Where a defendant is charged with the commission of a crime, the evidence of a conspiracy to commit crime may be shown, although the existence of the conspiracy is not charged in the indictment. [State v. Ruck, 194 Mo. l.c. 433; State v. Kennedy, 177 Mo. l.c. 119; State v. Collins, 181 Mo. l.c. 235; 5 R.C.L. p. 1087.] Conspiracy was not the crime of which the defendants stood charged in this case. They were charged with the crime of murder and the conspiracy was an incident; the failure to allege the existence of a conspiracy neither furnished grounds for the motion to exclude evidence of such conspiracy, nor for refusing to give an instruction directing the jury's attention to it as showing the condition under which the crime was committed. [State v. Lewis, 273 Mo. l.c. 531.]
IV. It is further claimed that the court erred in refusing an instruction offered by defendants authorizing conviction of murder in the second degree. There was no evidence tending to show that the homicide was murder in the secondInstruction degree; all the evidence indicated that it wasfor Second murder in the first degree or nothing, and theDegree. refusal to instruct on murder in the second degree was not erroneous. *Page 408 [State v. Rasco, 239 Mo. l.c. 582; State v. Lewis, 273 Mo. l.c. 525.] The defendants, as they admitted in their statements, were attempting to commit a felony by robbing Schowe and Perle. Whether the killing was characterized by premeditation and deliberation is immaterial. [Section 3230, R.S. 1919.] The commission of, or attempt to commit, a felony is the legal equivalent or premeditation and deliberation where a homicide is committed in the perpetration or attempted perpetration of the felony. [State v. Garrett, 276 Mo. l.c. 312; State v. Bobbitt, 215 Mo. l.c. 33.]
V. It is claimed that the verdict is irregular in that it does not state that the defendants were found guilty "as charged in the information." The verdict finds the defendants guilty of murder in the first degree, the crime of which they areVerdict. charged in the information, and it cannot be supposed that the jury were misled or did not understand what the offense was of which they found the defendants guilty; no possible prejudice could occur to the defendants by reason of that irregularity in the form of the verdict. [State v. Taylor, 261 Mo. l.c. 224-5.]
The appellants claim there was error in the verdict as set out above because in violation of the statute, Section 4046, Revised Statutes 1919, which provides that when several defendants are jointly tried the punishment of each in case of conviction must be assessed separately. This court has held in several cases that the statute is mandatory, and that the assessment of a joint punishment is no assessment at all.
Section 4048, Revised Statutes 1919, provides that where the jury does not assess the punishment in their verdict, or assesses a punishment not authorized by law, "the court shall assess and declare the punishment." It is held that where a jury renders a verdict such as rendered in this case, fixing a joint punishment for crime against several defendants, the error may be corrected *Page 409 if the trial court, in pronouncing the sentence and judgment against the defendant, assesses separately their punishments. [State v. Gordon, 153 Mo. 576; State v. Thornhill, 174 Mo. l.c. 370-371; State v. Person, 234 Mo. l.c. 267; State v. Taylor, 261 Mo. l.c. 224-5.] In the Person case, 234 Mo. l.c. 268, this court quotes the Thornhill case where the following passage appears: "In the more recent case of State v. Gordon, 153 Mo. 576, the verdict was joint and assessed the punishment at five years in the penitentiary. Judge SHERWOOD, after noting this error, said: `The court, therefore, should either have refused to receive the verdict and suggested its being put in proper form, failing in this, should itself have assessed and declared the punishment (R.S. 1889, sec. 4230; now Sec. 2649, R.S. 1899), which the jury in this case, by their defective verdict, failed to do. For this cause alone the judgment must be reversed and the cause remanded, with directions to the trial court to bring the defendant before it, and having done so, to proceed to assess and declare his punishment, and otherwise proceed in the cause as required by law.'
"This ruling then and now commends itself, for the reason that, as no error had occurred up to the point of assessing the punishment, no rule of right or policy demanded that the whole case should be retried when the statute furnished its own corrective for such an irregularity.
"At common law no such point as this could arise, because under that system the jury merely returned the verdict of guilty, and the duty of imposing the punishment as to each defendant devolved upon the courts in accordance with the law.
"In State v. Gordon, 153 Mo. 576, it will be observed it was held that the verdict assessing the punishment of both together was in effect a failure to assess it and in such case Section 2649 provides `the court shall assess and declare the punishment and render judgment accordingly.'" *Page 410
The Person case was reversed and remanded with directions to the trial court to cause the defendant to be brought before it and to proceed to declare his punishment and to sentence him separately.
In the present case the trial court brought the defendants before it and pronounced judgment against Carroll and Jocoy in these words:
"It is therefore ordered and adjudged by the court that the said defendants John Carroll and Charles W. Jocoy, alias Joseph Coyler, for the offense of murder in the first degree as charged in the information and in pursuance of the verdict of the jury heretofore rendered against them, be and are hereby sentenced to death and to be taken from this court to the county jail and from there be taken by the sheriff of this county to the St. Louis jail for safe-keeping and confined until Friday the 21st day of January, 1921, and on that day each of them be taken thence by the sheriff of Franklin County, Missouri, to the place of execution, which place of execution shall be in the jail yard, or other proper place as provided by law, and there between the hours of nine o'clock a.m. and five o'clock p.m. of said 21st day of January, 1921, be by the said sheriff hanged by the neck until each of them is dead."
The judgment is reversed and the cause remanded with directions to the trial court to bring the defendants before it, and having done so to proceed to assess and declare the punishment of each of said defendants, separately; and otherwise to proceed in the cause as required by law. Railey and Mozley, CC., concur.