State v. Massey. of the United States, and of the aggregate value, thirtyfour dollars, the property of E. P. Adkins, then and there from the person of and by force and violence to the said Adkins, feloniously did rob, steal, take and carry away, contrary to the form of the State in such cases make and provided, and against the peace and dignity of the State of Missouri." It is plain that the pleader by a mere clerical misprision, either omitted the word "did" before the phrase "make an assault," or he wrote "make" where he intended to write "made." In either event the error is one which the reader of the information readily detects and is readily and instantly able to supply. Such condition being obvious we do not think we ought to condemn the information as being fatally bad. We think it is saved by the Statute of Jeofails which forbids us to hold invalid any defective indictment or information wherein the defect extant "does not tend to the prejudice of the substantial rights of the defendant upon the merits." [Sec. 5115, R. S. 1909; State v. Duvenick, 237 Mo. 1. c. 194; State v. West, 202 Mo. 128; State v. Griffin, 249 Mo. 1. c. 627; State v. Morehead, 195 S. W. 1043.]. It follows that this specific contention of fatal badness, must be overruled. Obviously, the patent clerical errors in the contra formam statuti clause of the information are likewise cured by the Statute of Jeofails, supra. This information is, however, subject to another serious criticism, not called to our attention in the brief of defendant's learned counsel, but one which, being obvious, we think we should notice, and one Against Will. which, if the defect prove to be fatal, it is our statutory duty to notice. This criticism is bottomed upon the novel departure in criminal pleading which led the learned prosecuting attorney to omit to charge in the set phrase and language of both the statute and the common law, that the taking of the property of the prosecuting witness from the person of the latter was "against his will." The common law required such an allegation to be made in the indictment, and our own State v. Massey. statute, which is declaratory of the common law and which defines robbery in the terms of the common law (State v. Broderick, 59 Mo. 310), likewise contains this language. Any information attempting to charge the crime of robbery which fails substantially to allege that the taking of the property was against the will of the person robbed would be palpably bad. For obviously no person can be robbed, when he consents to or acquiesces in the taking of his property. There must be apt words in the information which negative the idea of consent, or acquiescence. Unless the information before us contain such, it is bad and cannot be upheld. For the pertinent language of our statute is: "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 injury to his person; shall be adjudged, guilty of robbery in the first degree." [Sec. 4530, R. S. 1909.]. The information in the case charges, it will be noted, that the property was taken from the person of E. P. Adkins, "by force and violence to the said Adkins." The statute does not contain the word "force" which we find used in the information, but does contain the word "violence." The noun "force" means "power exerted against will or consent." [Webster's Dictionary.] So, if the property was taken from the prosecuting witness by force, of necessity it was taken by the exercise of power, operating against the will of him who was robbed. It could not have been taken by force without being taken against the will of the prosecuting witness. While it is held, both at common law and under statutes defining robbery, with a uniformity which is almost universal, that the indictment must charge that the taking of the property is "against the will" of the person robbed, the cases hold and the text-books likewise lay down the rule that it is not an absolute prerequisite that the set and fixed phrase of the statute or of the common law be used to negative the fact of consent; that any other word or words which clearly allege that the caption of State v. Massey. the property taken was had without the consent of the person robbed, is sufficient. [People v. Riley, 75 Cal. 98; State v. LaChall, 28 Utah, 80; State v. Patterson, 42 La. Ann. 934; State v. Presley, 91 Miss. 377; Acker v. Com., 94 Pa. 284; State v. Kegan, 62 Iowa, 106; State v. Wilson, 136 La. 345; Chancey v. State, 124 S. W. 426; Anderson v. State, 28 Ind. 22; State v. Parr, 103 Pac. (Ore.) 434; 2 Bishop Crim. Proc. 1006; 34 Cyc. 1805.] While the information is not in a form to be either followed or commended, we are constrained to hold that it is not fatally defective. Instruction. II. It is also urged that the learned trial court erred in refusing to give the usual cautionary instruction on the weight to be given by the jury to the testimony of one Citius, an alleged accomplice, Cautionary who testified for the State. The only case in this State, which either the diligence of learned counsel for defendant or our own researches have found for us, and which holds that such failure is reversible error, is the case of State v. Woolard, 111 Mo. 1. c. 256. In the above case, at the page cited, Judge GANTT, said: "The court clearly erred in refusing defendant's fourth instruction. While a jury may convict upon the uncorroborated testimony of an accomplice, it is clearly the duty of the court to caution them in regard to such testimony. The impeachment of the witness, Alf. Brown, in this case, was so overwhelming, in addition to his being an accomplice, it was peculiarly incumbent on the trial court to caution the jury in regard to convicting the defendant, for so grave an offense, upon his uncorroborated evidence." From this excerpt facts appear, we think, which distinguish the Woolard case from the instant one. There the accomplice had been "overwhelmingly impeached." Moreover, the case was one wherein the conviction could not have been obtained, absent the testimony of the accomplice, that is, but for this testimony the State could not have gotten the case to the State v. Massey. jury. Here, in the instant case, practically every fact to which the witness Citius testified was shown by other witnesses in the case, save and except as to what was said by defendant to his alleged accomplices in a whispered conversation in which others saw defendant and these accomplices engaged, just prior to defendant's inveigling the prosecuting witness out of the saloon to the place where he was robbed. The prosecuting witness testified to facts which, if believed by the jury, showed that defendant aided and assisted in this robbery. In short, in this case the testimony of the accomplice is merely cumulative; for the direct and circumstantial evidence adduced in corroboration thereof was in our view sufficient within itself to take the case to the jury. So, however much fairer it might have been to have given this instruction as prayed, we do not think upon the facts before us that we ought to hold the failure to give the cautionary instruction to be reversible error. In taking this view we acquiesce in the rule stated in the Woolard case, but distinguish that case from the case at bar upon the respective facts. In a case wherein so large a part of the testimony upon which the conviction is bottomed comes from an accomplice, as that without such testimony the conviction could by no means be upheld, it might well constitute reversible error to refuse to give such cautionary instruction. But that is not this case. The rule we here adhere to is in all respects similar to the rule many times announced by us in the precisely analogous case of a conviction upon circumstantial evidence. In such a case, if all of the evidence upon which a conviction is bottomed is circumstantial, it is error to refuse to give the jury a cautionary instruction as to the manner of weighing such evidence. [State v. Donnelly, 130 Mo. 1. c. 649.] But if a conviction is not sought on circumstantial evidence alone, it is not error to refuse to give the cautionary instruction as to the manner in which such evidence should be weighed. [State v. Bobbitt, 215 Mo. 10; State v. Crone, 209 Mo. 316; State v. Donnelly, 130 Mo. 642; State v. Robinson, 117 Mo. 1. c. State v. Massey. 663; State v. Moxley, 102 Mo. 374.]. We think there can be no doubt as to the precise analogy existing between the two propositions, and that a similar rule should prevail. For these reasons we are constrained to hold that the contention should be disallowed. Feloniously. III. It is further contended that the court failed to require the jury, in and by instruction one given sua sponte, to find that the assault was felonious and that the taking of the property was feloniously done. This instruction does require the jury to find that the property was taken by defendant "with the intent at the time to wrongfully take and carry away and to convert the same fraudulently to his own use and deprive the owner thereof permanently without his consent." Moreover, we said in the case of State v. Rader, 262 Mo. 1. c. 133, after a careful examination of this whole question, this: "Even in prosecutions for robbery in the first degree, on all-fours by analogy both in the respect that a larceny is committed ordinarily and that the statutes defining it likewise use the word 'feloniously,' we find no such invariable rule. On the contrary, the general rule is in robbery as in ordinary cases, that feloniously need not be used in the instruction, or if used that it need not be defined. [State v. Woodward, supra; State v. Cantlin, supra; State v. Rowland, supra.]." Misdirection: IV. But touching this instruction, it is further and most seriously contended that in the very face of the evidence that both the assault upon the prosecuting witness and the taking of his property from No Evidence: his person were done and committed by Non-direction. persons other than defendant, this instruction yet unequivocally tells the jury that they must find that such assault and such taking of the property were actually done by defendant himself before they can find him guilty. This contention is borne out by the instruction which plainly so charges. The instructions in a criminal case must be bottomed upon |