State v. La Chall

• Decision Date: 17 June 1904
• Docket Number: 1536
• Citation: 77 P. 3,28 Utah 80
• Court: Utah Supreme Court
• Parties: THE STATE OF UTAH, Respondent, v. ALBERT LA CHALL and JOHN BARRY, Appellants

77 P. 3

28 Utah 80

THE STATE OF UTAH, Respondent, v. ALBERT LA CHALL and JOHN BARRY, Appellants

No. 1536

Supreme Court of Utah

June 17, 1904

Appeal from the First District Court, Box Elder County.--Hon. C. H Hart, Judge.

The defendants were convicted of the crime of robbery and appealed.

AFFIRMED.

Nels Jensen, Esq., for appellants.

Hon. M A. Breeden, Attorney-General, and Hon. W. R. White, Deputy Attorney-General, for the State.

BASKIN C. J. BARTCH and McCARTY, JJ., concur.

OPINION

BASKIN, C. J.

--The defendants, having been found guilty of the crime of robbery, were sentenced to three years' imprisonment in the penitentiary.

Section 4175, Revised Statutes 1898, provides that "robbery is the felonious taking of personal property in the possession of another, from his person, or immediate presence, and against his will, accomplished by means of force or fear."

The robbery for which the defendants were convicted was charged in the information in the following terms:

"That said Albert La Chall and John Barry on the twenty-seventh day of November, 1903, at Box Elder county, State of Utah then and there willfully, unlawfully, and feloniously, from the person and immediate presence of one David Radcliff, and by means of force and fear, and by threatening to shoot and kill him, the said David Radcliff, they, the said Albert La Chall and John Barry, did feloniously take the sum of four and 50-100 ($ 4.50) dollars, then and there in the possession and the property of said David Radcliff, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Utah."

After the defendants had entered the plea of not guilty, and the jury had been empaneled and sworn, the district attorney, over the objection of the defendants, was permitted to amend the original information by substituting in place of the portion of the same above quoted the following: "That the said Albert La Chall and John Barry on the twenty-seventh day of November, 1903, at Box Elder county, State of Utah did then and there willfully, unlawfully, and feloniously, from the person and immediate presence of one David Radcliff, and by means of force and fear, and by threatening to shoot and kill him, the said David Radcliff, and against his will, they, the said Albert La Chall and John Barry, did then and there feloniously take the sum of $ 4.50, in current United States silver coin, then and there in the possession and the property of the said David Radcliff. . ." The appellants assign as error the insertion of each of the italicized phrases, on the ground that they embrace matters of substance, and not of form, and were not therefore, admissible, under section 4694, Revised Statutes 1898, as an amendment to the information, after the defendants had entered their pleas.

Under the statute of the State of Maine which provided that "whoever by force and violence, or by putting in fear feloniously steals and takes from the person of another property that is the subject of larceny, is guilty of robbery" (Revised Statutes, c. 119, sec. 15), two persons were charged with having, in violation of said statute taken from the person of one, Emerson, certain money and one silver watch and one watch chain. Upon conviction the accused made a motion in arrest of judgment on the ground "that the indictment contained no allegation that the money or watch and chain therein mentioned had any value. On appeal (State v. Perley, 86 Me. 427, 30 A. 74, 41 Am. St. 564) it was held that the indictment was sufficient. In the opinion the court said: "It must be observed 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 creates degrees in robbery, or 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. The jury must be satisfied, however, that the goods were of some value, and they may infer it without separate proof, either from inspection of the articles, or from the description of them by the witnesses. 2 Bish. Cr. Proc., sec. 751; Com. v. Burke, 12 Allen 182; Com. v. Lawless, 103 Mass. 425; State v. Gerrish, 78 Me. 20, 2 A. 129." In the case of State v. Burke, 73 N.C. 83, it is held that it is not necessary to charge in an indictment for robbery the kind and value of the property taken. In the opinion the court said: "In robbery the kind and value of the property is not material, because force or fear is the main element of the offense. Thus, where a man was knocked down and his pocket rifled, but the robber found nothing except a slip of paper containing a memorandum, an indictment for robbing him of the paper was held to be...