State v. Brown

• Decision Date: 19 May 1891
• Citation: 104 Mo. 365,16 S.W. 406
• Parties: STATE v. BROWN et al.
• Court: Missouri Supreme Court

16 S.W. 406

104 Mo. 365

STATE v. BROWN et al.

Supreme Court of Missouri, Division No. 2.

May 19, 1891.

ROBBERY — INDICTMENT — INSTRUCTIONS — CREDIBILITY OF WITNESS — ACCOMPLICE.

1. Where the indictment charges that the accused feloniously did assault, rob, and steal and take money from the prosecuting witness, it need not be charged that the putting in fear was feloniously done.

2. The accused having testified that they took the money for the sole purpose of obtaining payment of a debt due them, it is error to omit to charge that to justify a conviction the money must have been taken animo furandi.

3. Under Rev. St. Mo. 1889, § 4218, providing that the fact that the accused is the party on trial "may" be shown for the purpose of affecting his credibility, it is not error to charge that, in determining the weight to be given to his testimony, the jury "should" consider the fact that he is the party on trial. Following State v. Young, 99 Mo. 666, 12 S. W. Rep. 879.

4. It is not error to charge that the law presumes that what the accused said against themselves is true, but the jury may believe or disbelieve what they said for themselves. Following State v. Brooks, 99 Mo. 137, 12 S. W. Rep. 633.

5. When, if the accused told the truth, they were guilty of no offense, but, if the prosecuting witness is to be believed, they were guilty of robbery as charged, it is not error to fail to charge that the accused might be convicted of petit larceny.

6. One who is present and aids and abets a robbery is punishable as a principal, though he receives none of the money, and the amount taken is immaterial.

Appeal from circuit court, Livingston county; J. M. DAVIS, Judge.

W. E. Kern, for appellant. The Attorney General, for the State.

THOMAS, J.

The defendants were tried for and convicted of robbery of the first degree in the circuit court of Livingston county, in September, 1890, and sentenced to imprisonment in the penitentiary for a term of five years. They have appealed to this court to obtain a reversal of this sentence.

1. It is urged, first, that the indictment is defective in not charging that defendants feloniously put the prosecuting witness "in fear of some immediate injury to his person." This contention is not tenable. The indictment charges that the defendants feloniously assaulted the prosecuting witness, and feloniously robbed, stole, and took from him the sum of $7.25. This is sufficient. It is not necessary (at least in Missouri) to allege that the putting in fear was done feloniously. State v. Wilcoxen, 38 Mo. 370; State v. Davidson, Id. 374; 2 Bish. Crim. Proc. § 1003; Kelly, Crim. Law, 5575; Rev. St. 1889, § 3530.

2. The second contention is that the court erred in failing to instruct the jury that before they could convict defendants of robbery they must first find from the evidence that they took the money with a felonious intent. Upon an examination of the instructions given, we find that the court did fail to do this. It is true, one of the instructions given told the jury that if defendants took any money from the prosecuting witness "in the manner alleged in the indictment" they were guilty of robbery, and the attorney for the state insists that that is sufficient. We do not think so. The court should not refer the jury to the indictment to determine what it is necessary to find in order to convict. The instructions should distinctly inform the jury of all the facts necessary to be found to constitute the offense, and technical terms used should be defined. It is not necessary that the court should use the word "feloniously" in the instructions. If it be used, however, it ought to be defined. When we say that a man "feloniously robs," we simply mean that he takes and removes the money or property of another animo furandi. Robbery is compounded of larceny and force. The defendants were not guilty of robbery unless they took the money from the prosecuting witness without an honest claim to it, or any of it, and with the intent to deprive him of the ownership therein. The instruction defining the offense, given by the court, is as follows: "The jury are instructed that if they believe from the evidence beyond a reasonable doubt that the defendants James Brown and William Hymes, at the time and place alleged in the indictment, took any money from the person of the prosecuting witness, Herman Ottoman, in his presence and against his will, by then and there putting the said Herman Ottoman in fear of some immediate injury to his person, and that the said money so taken was then and there the property of the said Herman Ottoman, then, if the jury so believe, they will find the defendants guilty, and assess punishment at a term of imprisonment in the penitentiary not less than five years." This contains all of the elements of robbery of the first degree under our statute, except that of the felonious intent. This is omitted, and this is a material error, for which the judgment of the trial court will have to be reversed. The evidence on the part of the state shows that Herman Ottoman, the prosecuting witness, fell into the company of defendants on the 26th day of July, 1890, at the bridge near Kansas City, and all three went to Chillicothe in a freight train. They stayed all night in an old house in the outskirts of the city. Next day, July 27th, defendants drew knives and clubs, and compelled Ottoman, by putting him in fear of personal injury, to deliver to them $7.25, all the money he had. The defendants were seen running through a field a short time after the alleged robbery. Ottoman reported what had occurred, and in a short time an officer went in pursuit, found defendants about a mile away, and arrested them. They denied at first having any money, but the officer found $6.25 on one and $1 on the other. Defendants testified that William Hymes, one of them, had loaned Ottoman, a short time before, $1, and that he promised to pay them $1.50 more if they would get him and his luggage to Chillicothe. They reached Chillicothe about midnight of the 26th day of July, and when they arrived there they demanded the money of him, but he said it was too much, but said he would give them $2, which they agreed to accept. Next morning, when asked for the money, he said he did not intend to give them any. Ottoman then went off, and got something to eat. They did not see him any more till about 10 o'clock. They went around though the outskirts of Chillicothe up north of the city and near Sturgis, when they met Ottoman again. They repeated the...