State v. Davidson

• Decision Date: 31 July 1866
• Parties: STATE OF MISSOURI, Respondent, v. ALFRED DAVIDSON, Appellant.
• Court: Missouri Supreme Court

38 Mo. 374

STATE OF MISSOURI, Respondent,

v.ALFRED DAVIDSON, Appellant.

Supreme Court of Missouri.

July Term, 1866.

Appeal from Greene Circuit Court.

Davidson was indicted in the Christian Circuit Court for robbery. The indictment charged substantially that Alfred Davidson, on the 30th day of September, 1861, in the county aforesaid, did then and there feloniously, on purpose, and of his malice aforethought, steal, take and carry away a rifle gun, being then and there the property of John Day, and of the value of twenty dollars, which said rifle gun the said Alfred Davidson took and carried away in his presence, and against his will, by putting him in fear of some great bodily harm, with the intent in so doing, then the said Alfred Davidson, the said rifle gun aforesaid to feloniously steal, take and carry away, and convert to his own use and benefit, and him the said John Day to feloniously rob, contrary, &c. A jury was impaneled, and the evidence was, in substance, that in September, 1861, defendant and Darden and Pettijohn came to Day's house and called for his gun, and Darden and Pettijohn having found it concealed in the house, took it, and they all went off together; that the three men were armed, and that he (witness) was put in fear; and that the gun, at the time it was taken, was not in sight of witness, but around on a back porch.

The court gave for the State the following instructions:

1. That if the jury believe from the evidence that defendant within three years before the finding of the indictment, in the county of Christian, State of Missouri, did feloniously take and carry away the gun of John Day, in his (Day's) presence, or by putting said Day in fear, they will find defendant guilty of robbery in the first degree.

2. If the jury believe from the evidence that the gun in question was taken from John Day in his presence, by force, or by putting him in fear, each of the persons present, aiding in so taking the gun, is guilty.

3. If the offence of robbery is once complete, it cannot be purged by the offender giving back the property stolen to the owner.

4. If the jury find defendant guilty of robbery in the first degree, they will assess the punishment at not less than ten years; if for robbery in the second degree, not exceeding ten nor less than five years; if in the third degree, not exceeding five; and if for grand larceny, not exceeding five years.

5. That every man intends the natural and necessary consequence of his own acts.

Defendant objected to all these instructions except the third, and his objection being overruled, excepted. Defendant then asked the following instructions:

1. That admitting all the evidence offered on behalf of the State to be true, yet they must find the defendant not guilty of robbery in the first degree, the offence with which defendant stands charged in the bill of indictment.

2. That unless they believe from the evidence that the defendant feloniously took and carried away a rifle gun, the property of John Day, from, in the presence and against the will of said Day, by putting said Day in fear of some immediate personal injury, they must find the defendant not guilty.

3. That unless they believe from the evidence the rifie gun was taken from and in the presence of John Day by defendant with a felonious intent, they will find defendant not guilty.

4. That unless they believe from the evidence that the taking charged in the indictment was done with the motive of gain or advantage to the defendant, or with such motive as to some third person, they must find the defendant not guilty.

5. That unless the jury believe from the evidence that the taking charged in the indictment was done in the presence of John Day, they must find the defendant not guilty.

6. That the words “in the presence,” mean within the sight and view of the person from whom the goods are alleged to be taken, at the time of such taking.

The court refused the first, second and sixth instructions, and gave the third, fourth and fifth. The jury returned a verdict of guilty of robbery in the first degree, and assessed defendant's punishment at ten years' imprisonment in the penitentiary.

T. A. Sherwood, for appellant.

The instructions given on the part of the State were erroneous. The first is objectionable, because it submits a question of law to the jury. It is objectionable, because it instructs the jury that they may find the defendant guilty of an offence not charged in the indictment, to-wit, robbery in the first degree. It is...