State v. Lamb

• Decision Date: 09 November 1897
• Citation: 141 Mo. 298,42 S.W. 827
• Parties: STATE v. LAMB.
• Court: Missouri Supreme Court

42 S.W. 827

141 Mo. 298

STATE v. LAMB.

Supreme Court of Missouri, Division No. 2.

November 9, 1897.

ROBBERY — VARIANCE — EVIDENCE — LIMITING NUMBER OF WITNESSES — RECORD.

1. Variance between indictment and evidence is not ground for reversal, in the absence of the finding required by Rev. St. 1889, § 4114, providing that variance shall not be ground for acquittal

unless the trial court find that it is material and prejudicial.

2. There is no variance between the indictment charging robbery "from the person" and the evidence showing a robbery "in the presence."

3. Where an indictment charges a robbery to have been done violently and against the will, actual fear on the part of the person from whom the property was taken need not be proved, but will be presumed.

4. The limiting of the number of witnesses to testify to defendant's alibi, to six, is not error, in the absence of something more to show an abuse of discretion.

Appeal from St. Louis circuit court; James E. Withrow, Judge.

Thomas Lamb was convicted of robbery, and appeals. Affirmed.

The court instructed as follows: "The defendant, Thomas Lamb, is charged by the indictment with robbery in the first degree, and pleads not guilty, and the court instructs you as follows, viz.: If you believe and find from the evidence that the defendant, Lamb, at the city of St. Louis and state of Missouri, on or about the 31st day of October, 1896, or at any time within three years next before the finding of the indictment herein, did take seventeen dollars, lawful money, or any part thereof, from the person or in the presence of Andrew Peterson, against his will, by violence to his person, with the intent at the time said money to wrongfully take and carry away, and fraudulently convert to his own use, and deprive the owner thereof without his consent, and that said money was of some value, however small, and was the property of said Andrew Peterson, then you will find the defendant guilty of robbery in the first degree, and assess his punishment at imprisonment in the penitentiary for a term not less than five years, and, unless you so find, you will acquit the defendant. If you find from the evidence that at the city of St. Louis and state of Missouri, at any time within three years next before the finding of the indictment herein, the defendant did take $17, lawful money of the United States, or any part thereof, from the person of, or in the presence of, Andrew Peterson, against his will, by violence to his person, or by putting him in fear of some immediate injury to his person, with the intent at the time said money to wrongfully take and carry away, and fraudulently convert to his own use, and deprive the owner thereof without his consent, and that said money was of some value, however small, and was the property of Andrew Peterson, then you will find the defendant guilty of robbery in the first degree, and assess his punishment at imprisonment in the penitentiary not less than five years. Before you can find the defendant guilty of robbery in the first degree, you must find he took said money from the person or in the presence of the said Andrew Peterson, either by violence to his person or by putting him in fear of some immediate injury to his person. If such taking was by violence to his person, no particular amount of force is necessary to constitute such violence. If you find that defendant assaulted said Peterson by drawing a pistol upon said Andrew Peterson, and demanding money from said Peterson, it is sufficient. In such case no threats or words of menace are required. If such taking was by putting said Andrew Peterson in fear of some immediate injury to his person, then any threat or menace calculated to produce such fear is sufficient. If you find that the defendant drew a pistol upon said Andrew Peterson, and demanded money from said Peterson, it is sufficient. The law presumes the defendant to be innocent, and this presumption continues until it has been overcome by evidence which establishes his guilt to your satisfaction and beyond a reasonable doubt; and the burden of proving his guilt rests with the state. If, however, this presumption has been overcome by the evidence, and the guilt of the defendant established to a moral certainty and beyond a reasonable doubt, your duty is to convict. If you have a reasonable doubt of the defendant's guilt, you should acquit; but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant's guilt, and not a mere possibility of his innocence. The previous good character of the defendant, if proved to your reasonable satisfaction, is a fact in the case which you should consider in passing upon the guilt or innocence of the defendant, for the law presumes that one whose character is good is less likely to commit a crime than one whose character is not good. But if all the evidence, including that which has been given, touching the previous good character of the defendant, shows him to be guilty, then his previous good character cannot justify, excuse, palliate, or mitigate the offense. The jury are instructed that they are the sole judges of the credibility of the witnesses, and of the weight to be given to their testimony. In determining such credibility and weight, they will take into consideration the character of the witness, his manner on the stand, his interest, if any, in the result of the trial, his relation to or feeling towards the defendant, the probability or improbability of his statements as well as the facts and circumstances given in evidence. In this connection you are further instructed that, if you believe that any witness has knowingly sworn falsely to any material fact, you are at liberty to reject all or any portion of such witness' testimony. The defendant is a competent witness in his own behalf, but the fact that he is a witness testifying in his own behalf, and the interest he has at stake in the case, may be considered by the jury in determining the credibility of his testimony. The defendant has interposed as a defense what is known in law as an alibi; that is, that, if the offense was committed as charged, then he was at the time of the commission thereof at another and different place than that in which such offense was committed, and therefore was not and could not have been the person who committed the same. Now, if the evidence raises in your minds a reasonable doubt as to his...