State v. Brown
| Decision Date | 19 May 1891 |
| Citation | 16 S.W. 406,104 Mo. 365 |
| Parties | The State v. Brown et al., Appellants |
| Court | Missouri Supreme Court |
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 it uses the word "stolen" instead of "taken;" if stolen, then it could only be petit larceny. (18) The court erred in giving instruction, numbered 7, for the state, because there is no evidence to support it. (19) The court erred in not sustaining defendants' motion for a new trial. R. S. 1889, sec. 4208. (20) The defendants' motion in arrest should have been sustained, because the indictment is insufficient, in that it does not charge that the putting in fear was done "feloniously." 1 Wharton's Prec. and Plead. [3 Ed.] book 4, ch. 4; 2 Archbold's Prac. and Plead., p. 521; Train & Heard's Prec. Ind. 461; State v. Jenkins, 36 Mo. 374, where indictment for robbery is approved.
John M. Wood, Attorney General, for the State.
(1) The indictment properly charges the offense of robbery in the first degree. R. S. 1889, sec. 3530; State v. Davidson, 38 Mo. 374. (2) The first instruction for the state was essentially in the language of the statute, and unexceptionable. (3) The third instruction for the state is a literal copy of the third instruction given in the case of State v. Davidson, 38 Mo. 374. This instruction properly declared the law. State v. Pratt, 98 Mo. 482. Every robbery necessarily includes a larceny of the property taken, hence the criticism upon the use of the word "stolen," in this instruction, instead of the word "taken," is without force. Nor is this instruction in any respect misleading, for the jury could not have understood it in any other way than that, if a robbery was committed, the subsequent giving back of the property obtained by means of the robbery did not purge the offense. (4) The fourth instruction for the state is correct. The value of the property is not material. State v. Howerton, 58 Mo. 581. (5) The fifth instruction in regard to flight was proper. State v. King, 78 Mo. 555. (6) The sixth instruction properly declares the law as to defendant's testimony. State v. Cook, 84 Mo. 40, and cases cited; State v. Vansant, 81 Mo. 60; State v. Cooper, 71 Mo. 436. (7) The instruction as to an accessory is correct. State v. Hollenscheit, 61 Mo. 302, and authorities cited; State v. Testerman, 68 Mo. 413; State v. Phillips & Ross, 24 Mo. 475; State v. Miller, 67 Mo. 607; State v. Cox, 65 Mo. 29; State v. Miller, 100 Mo. 606; R. S. 1889, sec. 3944. (8) The eighth instruction given on the part of the state has been approved in a number of cases, and the court did not err in giving it, or refusing instruction, numbered 6, prayed for by appellant. State v. Hill, 65 Mo. 84. (9) The court did not err in refusing to give instruction, numbered 4, as asked by defendants, in relation to the snatching of property from the hand of another. 2 Bishop, Crim. Law, sec. 1167, et seq.; State v. Broderick, 59 Mo. 318.
The defendants were tried for and convicted of robbery of the first degree in the circuit court of Livingston county in September, 1890, and sentenced to imprisonment in the penitentiary for a term of five years. They have appealed to this court to obtain a reversal of this sentence.
I. It is urged, first, that the indictment is defective, in not charging that defendants feloniously put the prosecuting witness "in fear of some immediate injury to his person." This contention is not tenable. The indictment charges that the defendants feloniously assaulted the prosecuting witness and feloniously robbed, stole and took from him the sum of $ 7.25. This is sufficient. It is not necessary, at least in Missouri, to allege that the putting in fear was done feloniously. State v. Wilcoxen, 38 Mo. 370; State v. Davidson, 38 Mo. 374; 2 Bish. Crim. Proc., sec. 1003; Kelly, Crim. Law, sec. 575; R. S. 1889, sec. 3530.
II. The second contention is, that the court erred in failing to instruct the jury that, before they could convict defendants of robbery, they must first find from the evidence that they took the money with a felonious intent. Upon an examination of the instructions given, we find that the court did fail to do this. It is true, one of the instructions given told the jury that, if defendants took any money from the prosecuting witness, "in the manner alleged in the indictment," they were guilty of robbery, and the attorney for the state insists that that is sufficient. We do not think so.
The court should not refer the jury to the indictment to determine what it is necessary to find in order to convict. The instructions should distinctly inform the jury of all the facts necessary to be found to constitute the offense, and technical terms used should be defined. It is not necessary that the court should use the word "feloniously" in the instructions. If it be used, however, it ought to be defined. When we say that a man "feloniously robs," we simply mean that he takes and removes the money or property of another, animo furandi.
Robbery is compounded of larceny and force. The defendants were not guilty of robbery, unless they took the money from the prosecuting witness, without an honest claim to it or any of it, and with the intent to deprive him of the ownership therein.
The instruction given by the court, defining the offense, is as follows: "The jury are instructed that, if they believe from the evidence, beyond a reasonable doubt, that the defendants, James Brown and William Hymes, at the time and place alleged in the indictment, took any money from the person of the prosecuting witness, Herman Ottoman, in his presence and against his will, by then and there putting the said Herman Ottoman in fear of some immediate injury to his person, and that the said money so taken was then and there the property of the said Herman Ottoman, then, if the jury so believe, they will find the defendants guilty and assess punishment at a term of imprisonment in the...
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