State v. Carroll and Jocoy. 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. 1. c. 280; State v. Cummins, 279 Mo. 1. 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. 1. c. 83; State v, Levy, 262 Mo. I. c. 191; State v. Sykes, 191 Mo. 1. c. 79; State v. Lehman, 175 Mo. 1. c. 625.] Conspiracy. State v. Carroll and Jocoy. 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 common 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. 1. c. 433; State v. Kennedy, 177 Mo. 1. c. 119; State v. Collins, 181 Mo. 1. 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. 1. 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 second degree; all the evidence indicated that it was murder in the first degree or nothing, and the refusal to instruct on murder in the second degree was not erroneous. Instruction for Second Degree. State v. Carroll and Jocoy. [State v. Rasco, 239 Mo. 1. c. 582; State v. Lewis, 273 Mo. 1. 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. 1. c. 312; State v. Bobbitt, 215 Mo. 1. 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, Verdict. the crime of which they are 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. 1. 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 punish ment 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 cor State v. Carroll and Jocoy. rected 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. 1. c. 370-371; State v. Person, 234 Mo. 1. c. 267; State v. Taylor, 261 Mo. 1. c. 224-5.] In the Person case, 234 Mo. 1. 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.'"' State v. Carroll and Jocoy. 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. PER CURIAM:-The foregoing opinion by WHITE, C., is adopted as the opinion of the court. All of the judges concur. |