16 S.W. 406 (Mo. 1891), State v. Brown

Citation:16 S.W. 406, 104 Mo. 365
Opinion Judge:Thomas, J.
Party Name:The State v. Brown et al., Appellants
Attorney:Kern & Kemp for appellants. John M. Wood, Attorney General, for the State.
Case Date:May 19, 1891
Court:Supreme Court of Missouri
 
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Page 406

16 S.W. 406 (Mo. 1891)

104 Mo. 365

The State

v.

Brown et al., Appellants

Supreme Court of Missouri, Second Division

May 19, 1891

Appeal from Livingston Circuit Court. -- Hon. J. M. Davis, Judge.

Reversed and remanded.

Kern & Kemp for appellants.

(1) Robbery is larceny from the person, by violence, or by putting in fear. 2 Bishop, Crim. Law [3 Ed.] p. 595; Long v. State, 12 Ga. 293; People v. Nelson, 56 Cal. 77. (2) Larceny is characterized by a felonious intent. State v. Ware, 62 Mo. 597; State v. Shermer, 55 Mo. 83; State v. Stone, 68 Mo. 101. (3) Therefore, in robbery, the taking must be with an intent to appropriate the property as in larceny, with animo furandi. People v. Keefer, 2 West C. Rep. (Cal.) 878; Long v. State, 12 Ga. 293; State v. Hollyway, 41 Iowa 200; Ward v. Commonwealth, 14 Bush, 233; Murphy v. People, 3 Hun, 114; State v. Curtis, 71 N.C. 56; Jordan v. Com., 25 Gratt. 943; 2 Wharton, Crim. Law [7 Ed.] sec. 1697; State v. Broderick, 59 Mo. 320. (4) The court erred in not submitting to the jury the question of intent in taking the money. Jordan v. Com., 25 Gratt. 943; People v. Hall, 6 Park Cr. 642; Johnson v. Com., 24 Gratt. 555. (5) The court should have told the jury to find the taking was done "feloniously," but did not. R. S. 1889, sec. 3530. (6) The court erred in not instructing the jury on all the law arising in this case, and a failure to do so constitutes reversible error, and it makes no difference that such instructions were not asked. State v. Banks, 73 Mo. 592; State v. Branstetter, 65 Mo. 154; State v. Palmer, 88 Mo. 568. (7) The court should have given an instruction on petit larceny. Com. v. Prewett, 82 Ky. 404; State v. Keeland, 90 Mo. 337; Kidd v. State, 83 Ala. 58. (8) The court should have instructed the jury that, if the defendants compelled Ottoman to pay a debt due them, then there was no robbery. Regina v. Hemmings, 4 F. & F. 50; State v. Hollyway, 41 Iowa 200; 2 Wharton's Crim. Law [7 Ed.] sec. 1697. (9) The court erred in refusing instruction, numbered 4, as asked by defendants in relation to the snatching of property from the hand of another. Snatching property from the hand of another is not robbery. State v. Texler, 2 Cap. Law. Rep. 90; 6 Am. Dec. 558; State v. Willis, 16 Mo.App. 553; Shinn v. State, 64 Ind. 13; State v. Sommers, 12 Mo.App. 374; 2 Wharton's Crim. Law [7 Ed.] secs. 1701, 1786; 2 Bishop's Crim. Law [3 Ed.] p. 597. (10) If instruction 4, as asked, was objectionable in phraseology, the court should have given a correct one in relation to that phase of the case, and a refusal to do so is reversible error. State v. Mathews, 20 Mo. 55; State v. Jones, 61 Mo. 232; State v. Lowe, 93 Mo. 571; State v. Stonum, 62 Mo. 596. (11) Modifying instruction 4 was a refusal. Allen v. Mansfield, 82 Mo. 688. (12) The court erred in refusing instruction, numbered 6, asked by defendants. State v. Hays, 23 Mo. 319; State v. Brooks, 92 Mo. 555. (13) The court erred in giving instruction, numbered 8, for the state, because it eliminated from the consideration of the jury what defendants said for themselves. They were entitled to what they said for themselves. State v. Hays, 23 Mo. 319; State v. Brooks, 92 Mo. 555; State v. Hicks, 92 Mo. 431. (14) Instruction, numbered 6, for the state, is erroneous. It is based upon Revised Statutes, 1889, section 4218, and is stronger in its terms than is contemplated by that section, and imports an obligation on the jury they "should consider." State v. Wagner, 69 Mo. 197; State v. Zorn, 71 Mo. 415; State v. Saunders, 76 Mo. 35; State v. McGuire, 76 Mo. 326; State v. Banks, 73 Mo. 592. (15) The instructions for the state fail to tell the jury of what they shall find the defendants guilty. (16) Instructions 3 and 5, given for the state, are erroneous, because they assume that the crime of robbery had been committed, which was a fact in issue. Robertson v. Drane, 100 Mo. 273; Coner v. Taylor, 82 Mo. 347; State v. Castor, 93 Mo. 242. (17) Number 3 is also misleading, because...

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