State v. Keeland

• Decision Date: 20 December 1886
• Citation: 2 S.W. 442,90 Mo. 337
• Parties: The State v. Keeland, Appellant
• Court: Missouri Supreme Court

2 S.W. 442

90 Mo. 337

The State v. Keeland, Appellant

Supreme Court of Missouri

December 20, 1886

Appeal from Jasper Circuit Court. -- Hon. M. G. McGregor, Judge.

Affirmed.

W. M Laforce and W. T. Green for appellant.

B. G Boone, Attorney General, for the state.

Appellant made no objections at the time and saved no exceptions to the admission or exclusion of evidence, or the giving or refusing of instructions, except an instruction in the nature of a demurrer to the evidence, and the court will not examine anything but the record proper and the demurrer to the evidence. State v. McDonald, 85 Mo. 539, and cases cited. The demurrer to the evidence was properly overruled. The record does not purport to preserve all the evidence, but enough is preserved to support the verdict. If this were not so this court would presume, in the absence of a complete transcript of the evidence, that it was sufficient and not disturb the verdict. State v. Brown, 75 Mo. 317. Further, a verdict in a criminal case will not be disturbed on account of a lack of evidence unless there is a total absence of evidence. State v. Cook, 58 Mo. 546; State v. Musick, 71 Mo. 401; State v. Zorn, 71 Mo 415.

Sherwood, J. Norton, J., absent.

OPINION

Sherwood, J.

The defendant was indicted, under section 1309, for stealing certain property and money from the person of one John Lacy in the night time. The indictment is sufficient under that section, and the evidence, which appears in the record, supported the charge, except as to the venue of the offence; but as all the evidence is not copied in the bill of exceptions, it will be presumed the same was proved.

There was some evidence to show that the crime committed was robbery and not larceny, but this was immaterial under the provisions of Revised Statutes, section 1810. That section declares that: "When, by law, an offence comprises different degrees, an indictment may contain counts for the different degrees of the same offence, or for any of such degrees." Now robbery is compound larceny, or larceny committed by violence from the person of one put in fear; and it consists in the main of larceny and assault. And an indictment for robbery, therefore, contains all the allegations essential in simple larceny with such added incidents as make the larceny robbery. 1 Bish. Crim. Law, secs. 553, 582; 2 Bish. Crim. Law, secs. 892, 1156, 1158-59; 2 Bish. Crim. Proc., secs. 1001-2. The articles stolen in this case were over the value of thirty dollars, and it is settled in this state that one may be indicted for robbery and convicted of grand larceny. State v. Jenkins, 36 Mo. 372; State v. Davidson, 38 Mo. 374; State v. Brannon, 55 Mo. 63; State v. Pitts, 57 Mo. 85. And the latter, in the sense in which it is employed in section 1810, is one of the degrees of the former offence; the word "degrees" not being used in a strictly technical manner, but as indicating the principal crime as the genus, and the lesser as the species (Watson v. State, 5 Mo. 497); and necessarily included within the definition of the larger offence, as already seen. 1 Bishop Crim. Law, secs. 791, 794, 795; State v. Shoemaker, 7 Mo. 177.

And it is only upon the theory of robbery being the higher offence and larceny the lower offence or degree of that offence that an acquittal or conviction of either is held to be a bar to a prosecution for the...