McGinnis v. State

• Court: Wyoming Supreme Court
• Writing for the Court: BEARD, JUSTICE.
• Citation: McGinnis v. State, 16 Wyo. 72, 91 P. 936 (Wyo. 1907)
• Decision Date: 07 October 1907
• Parties: McGINNIS v. STATE

91 P. 936

16 Wyo. 72

McGINNIS v. STATE

Supreme Court of Wyoming

October 7, 1907

ERROR to the District Court, Converse County, HON. RODERICK N MATSON, Judge.

Reversed and remanded.

Allen G. Fisher, for plaintiff in error.

The information was fatally defective in a matter of substance in failing to allege the ownership of the property said to have been taken by force and violence. The statute is virtually a re-enactment of the common law. A man is not guilty of taking his own property from another even by violence; so there must be all the elements of larceny present to constitute robbery, and the ownership of the property taken must be alleged. (Rex v. Hull, 3 Car. &amp P., 409; Beale's Case, 281; Barnes v. State, 9 Tex.App. 128; Smedley v. State, 30 Tex. 214; People v. Vice, 21 Cal. 344; Com. v. Clifford, 8 Cush. (Mass.), 215; Sikes v. Com. (18 S.W. 902); Thompson v. Com., 18 S.W. 1022; People v. Hughes, 11 Utah 100; State v. Wasson, 101 N.W. (Ia.), 1125; 2 Bishop's Cr. Proc., 1006; McLain's Cr. Law, Sec. 481; People v. Ammerman (Cal.), 50 P. 15; Brooks v. People, 49 N.Y. 436; State v. Dengal, 24 Wash. 49; State v. Morgan, 71 Pac. (Wash.), 723; Boles v. State, 58 Ark. 35; Hickey v. State, 23 Ind. 21; People v. Jones, 53 Cal. 58; Com. v. Brewitt, 82 Ky. 240; State v. Savage, 36 Ore. 191; State v. Rogers, 21 Mont. 143; Brown v. State, 33 Neb. 354; State v. Keeland, 90 Mo. 337; 2 East, P. C., p. 651; Long's Case, Cro. Eliz., 490; Commonwealth v. Morse, 14 Mass. 218; Houston v. Com., 87 Va. 257.)

Statutes defining robbery must be construed in the light of the common law, and the terms used are to be taken in the sense understood at common law, unless such construction is contrary to the express terms of the statute. (Clark & Marshall on Crimes (2d Ed.), 560; State v. Calhoun, 72 Iowa 432; Houston v. Com., 87 Va. 257.) And unless expressly so provided, such statute is not to be construed as dispensing with the necessity that the property shall be that of another. (Com. v. Clifford, 8 Cush., 215.) The objection being one of substance can be raised by motion in arrest.

W. E. Mullen, Attorney General, for the State.

The objection to the information on the ground that it failed to allege the ownership of the property should have been taken by motion to quash, and not having been so raised the objection was waived by pleading not guilty. (R. S. 1899, Sec. 5326; Wilbur v. State, 3 Wyo. 268; Miller v. State, 3 Wyo. 657; Tway v. State, 7 Wyo. 74-78; State v. McCraffery, 40 P. 64 (Mont.) The information is sufficient under the statute defining robbery. (Anderson v. State, 28 Ind. 23.)

The essential ingredients of the offense are the felonious and forcible taking from the person of another of goods of value, and an information in the language of the statute is sufficient, although it contains no averment of ownership of the property taken. (State v. Swafford, 71 Tenn. 162; Clemens v. State, 92 Tenn. 282; State v. Corbes, 47 La. Ann., 1587.)

It is a general rule that in an indictment for an offense created by statute, it is sufficient to describe the offense in the words of the statute; and if in any case the defendant insists upon a greater particularity, it is for him to show that from the obvious intention of the legislature, or the known principles of law, the case falls within some exception to such general rule. (Wharton Cr. Law (6th Ed.), 364; People v. Hicks, 4 P. 1093 (Cal.); In re McDonald, 4 Wyo. 155.) Under our statute the ownership of the property taken is not made an ingredient of the offense, but the taking must be felonious. The taking from another by violence of property belonging to the taker would probably not be a felony. The Wyoming statute is not a re-enactment of the common law definition of robbery, as contended.

BEARD, JUSTICE. SCOTT, J., concurs. POTTER, C. J., dissents.

OPINION

BEARD, JUSTICE.

An information was filed by the county and prosecuting attorney of Converse County against the plaintiff in error, William McGinnis, for the crime of robbery. The charge contained in the information being as follows: "That William McGinnis, late of the county aforesaid, on the 12th day of December, A. D. 1905, at and in the county aforesaid, the said William McGinniss did then and there unlawfully, forcibly and feloniously take from the person of Norvil Lawrence by violence the sum of fifty dollars, and more, lawful money of the United States and of the value of fifty dollars, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming." To this information the defendant, McGinnis, pleaded "not guilty." On the trial the jury returned a verdict of guilty against him, and he moved in arrest of judgment on two grounds: First, because the defendant had not been given a preliminary examination by an examining magistrate before the information was filed in the district court; and second, because the facts stated in the information are not sufficient to constitute an offense. The motion was denied by the court, and the defendant sentenced to a term in the penitentiary, and he brings error.

The objection that the defendant had not been given a preliminary examination, if such was the fact, and if the case was one requiring it under the provisions of Sec. 5273, R. S. 1899, should have been presented by a motion to quash if the grounds appeared upon the face of the record; otherwise by plea in abatement; and not having been so taken was waived by the plea of not guilty, by the express terms of the statute. (Sec. 5326, R. S. 1899.)

The other objection that the facts stated in the information do not constitute an offense, is one of the grounds upon which a motion in arrest of judgment may be granted (Sec. 5418, R. S. 1899), and presents the question of the sufficiency of the information. Robbery is defined by our statute as follows: "Whoever forcibly and feloniously takes from the person of another any article of value, by violence or by putting in fear, is guilty of robbery, and shall be imprisoned in the penitentiary not more than fourteen years." This is but a restatement of the offense at common law and embraces all of the elements of robbery at common law. Blackstone defines robbery to be "the felonious and forcible taking, from the person of another, of goods or money to any value, by violence or by putting him in fear." (2 Cooley's Blackstone (4th Ed.), Bk. 4, 242.) It is an aggravated form of larceny and there can be no robbery without larceny. Bishop states that the elements of the offense to be averred and proved are, (1) a larceny, (2) wherein the asportation is from the person, and is (3) effected by force or by putting in fear. (2 Bishop's New Crim. Procedure, Sec. 1001.) "The indictment should contain the allegations of simple larceny, with the added matter that makes the larceny robbery." (Id., Sec. 1002.) "Ownership must be alleged and proved precisely as in larceny." (Id., Sec. 1006; 4 Cur. Law, 1317.)

That the ownership of the property alleged to have been taken must be stated in an indictment or information for robbery has been generally held by the courts of last resort in those states where the question has arisen. In a recent case in the supreme court of Iowa, under a statute which provides "If any person, with force or violence, or by putting in fear, steal and take from the person of another any property that is the subject of larceny, he is guilty of robbery," it was held that the offense thus created by the statute embraces all of the elements of the crime under the common law. And that robbery is but an aggravated form of larceny both at common law and under the statute; and as larceny is defined to be the felonious taking of the property of another, an allegation of ownership is necessary in an indictment for robbery. The indictment in that case charged that the defendant assaulted Thomas Malone, "and, with force and violence, wilfully and feloniously did steal, take and carry away from the person" of said Malone the sum of $ 75. The ownership of the property was not otherwise alleged in the indictment. It was contended that the indictment was good because it charged that the defendant did "steal from the person of Malone." But the court said: "It is true we have held that the word 'steal,' used in the indictment, means a felonious taking. (State v. Griffin, 79 Iowa 568, 44 N.W. 813.) But we have never gone beyond this, and cannot, because of the statute already referred to." It was held that under the common law it is necessary to allege and prove ownership precisely as in larceny and that such is the rule where it is a statutory crime. (State v. Wasson, 126 Iowa 320, 101 N.W. 1125.) In People v. Vice, 21 Cal. 344, the indictment was for robbery and charged that the defendant "did violently and feloniously take money of the following description * * * from the person of another, to-wit: From the person of Jesse A. Brandy by force, threats," etc. The indictment was not demurred to, but after a verdict of guilty defendant moved in arrest of judgment on the ground that the ownership of the property was not stated in the indictment, which motion was denied. On appeal the supreme court held the indictment fatally defective for the want of such allegation and reversed the judgment. And in People v. Jones, 53 Cal. 58, it was held that an indictment for robbery must aver every fact necessary to constitute larceny, and more. And in People v. Ammerman, 118 Cal. 23, 50 P. 15, the defendant was informed against for robbery and pleaded former acquittal, once in jeopardy and not guilty. The opinion recites that "an information against the defendant for the crime of robbery involving the same transaction had previously been...