Hanson v. State
| Decision Date | 26 June 1885 |
| Parties | HANSON v. STATE. |
| Court | Ohio Supreme Court |
Error to the court of common pleas of Greene county.
The plaintiff in error was indicted, tried, and convicted of the crime of assault with intent to rob, at the January term, 1885, of the court of common pleas of Greene County. The testimony on the trial tended to show that the alleged crime was committed in attempting to detach and remove a diamond shirt-stud from the person of the prosecuting witness, who was, at the time of the assault, standing in a crowd, and, feeling a sudden jerk at his shirt bosom, reached out his hand and caught the plaintiff in error, who struggled to release himself from the grasp of the witness. The shirt was torn by the jerk, but the stud was not detached.[Ohio St. 376]F. E. Wright and M. R. Snodgrass, for plaintiff in error.
[Ohio St. 377]James Lawrence, Atty. Gen., for the state.
[Ohio St. 378]McILVAINE, C. J.
Several errors are assigned, but we think it unnecessary to notice any other than those relating to the refusal of the court to charge the jury as requested by defendant below. The court refused to charge ‘that violence, in order to constitute an assault with intent to rob, must not be subsequent to the attempt to take the property.’ This request should have been given. There being no putting in fear, violence is an essential ingredient in the crime of robbery. We find nothing in the charge as given which can be considered as a fair equivalent for the request. The testimony tended to show that after the taking of the property had been abandoned by the defendant a struggle to avoid an arrest ensued. However violent this struggle, it did not characterize the attempt to take the diamond stud. The jury should have been plainly told that the charge of assault with intent to rob by violence was not proved by subsequent violence used to avoid an arrest.
The court also refused to charge ‘that if the jury find that the defendant had not used such force and violence as makes him guilty of assault with intent to rob, he may be found guilty of assault and battery.’ If the jury, contrary to law, had been instructed that a conviction of the defendant for assault and battery only could not be had under that indictment, his danger of a [Ohio St. 379]conviction for the higher crime named in the indictment would, no doubt, have been increased. Howard v. State, 25 Ohio St. 399;Heller v. State, 23 Ohio St. 582.
True, the court...
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