Rowan v. People

• Court: Colorado Supreme Court
• Writing for the Court: [93 Colo. 474] HILLIARD, Justice.
• Citation: Rowan v. People, 93 Colo. 473, 26 P.2d 1066 (Colo. 1933)
• Decision Date: 06 November 1933
• Docket Number: 13362.
• Parties: ROWAN v. PEOPLE.

26 P.2d 1066

93 Colo. 473

ROWAN v. PEOPLE.

No. 13362.

Supreme Court of Colorado

November 6, 1933

In Department.

Error to District Court, Phillips County; H. E. Munson, Judge.

James Rowan was convicted of robbery, and he brings error.

Affirmed.

Avery T. Searle, of Holyoke, for plaintiff in error.

Paul P Prosser, Atty. Gen., and Charles H. Queary, Asst. Atty. Gen for the People.

HILLIARD, Justice.

Plaintiff in error, to whom we shall refer as defendant, was prosecuted for the crime of robbery, convicted and sentenced to the penitentiary for not less than five nor more than seven years. Error is assigned.

The assignments may be comprehended in the following points: (1) That a motion to quash the information should have been sustained, for the reason, as argued, the facts set forth did not constitute an offense; (2) that the evidence was not sufficient to warrant the verdict of guilty; and (3) that the court of its own motion should have instructed the jury to disregard a certain gun which was shown to witnesses in the presence of the jury, marked as an exhibit, but not offered in evidence.

Specifically the criticism of the information is that it failed to allege that the '$49.81 referred to therein was money or that it was money of the United States, and failed to allege its value or that it had any value.' The information reads as follows:

'That James Rowan late of the County of Phillips and State of Colorado, on or about the 22nd day of December in the year of our Lord one thousand nine hundred and Thirty-two at and within the County and State aforesaid being then and there armed with a dangerous weapon, to wit: A pistol loaded with powder and leaden ball, then and there with intent, if resisted, to kill and murder Charlie E. Peterson, employee in charge of the Filling Station and business of F. E. Cherry, feloniously and violently and by force, intimidation and threat did make an assault upon said Charlie E. Peterson and did then and there feloniously, violently, by force and intimidation put him, the said Charlie E. Peterson in bodily fear and in danger of his life and the sum of $49.81 all the personal property, goods, chattels and moneys of the said F. E. Cherry from the control and against the will of Charlie E. Peterson, then and there feloniously, violently and by force and intimidation did rob, steal, take and carry away, contrary to the form of the Statute in such case made and provided and against the peace and dignity of the same People of the State of Colorado.'

Study of the challenged information will be aided by an analysis of the statutory definition of robbery. Section 6718, C. L. 1921, amended, Session Laws 1931, p. 307. It will be noted that, unlike the usual larceny statute, in the robbery statute the value of the thing taken is not emphasized for any purpose. Rather the gravamen of the offense, as was the conception of the lawmaking body, rested in the manner of the taking. In State v. Perley, 86 Me. 427, 30 A. 74, 75, 41 Am.St.Rep. 564, where defendant made a motion in arrest of judgment on the ground 'that the indictment contains no allegation that the money or the watch and chain therein mentioned had any value,' the court said: 'It must be ovserved that there is no provision of this statute which makes the amount of property taken an essential element of the offense; and there is no statute in this state which * * * in any way makes the punishment of the offense dependent upon the value of the property taken. Nor is there anything in the nature of robbery, as defined by the common law, from which it appears that the value of the property has ever been deemed of the essence of the crime. * * * Where the value is not essential to the punishment, it need not be distinctly alleged or proved.' 'There is no occasion, as there is in larceny, for alleging the value, as the punishment is not made to depend on the value of the property taken.' 1 McClain's Crim. Law,§ 472. See, also, section 481, same authority. 'There is no law * * * requiring the jury, in the case of robbery, to specify the value of the property in their verdict. The degrees of robbery are not based upon value, and the value of the thing taken is not of the essence of the offense. The putting in fear and taking the property, constitute the gist of the crime, and there is no necessity for either charging in the indictment, or proving at the trial, or specifying in the verdict, the value of the property.' State v. Howerton, 58 Mo. 581, 582. 'In robbery the kind and value of the property is not material, because force or fear is the main element of the offence.' State v. Burke, 73 N.C. 83, 89. State v. Segermond, 40 Kan. 107, 19 P. 370, 10 Am.St.Rep. 169, holding otherwise, cited by counsel for plaintiff in error, is disapproved in a later Kansas case. In re Wheatley, 114 Kan. 747, 750, 220 P. 213.

The...