State v. Dengel

• Decision Date: 15 February 1901
• Citation: 24 Wash. 49,63 P. 1104
• Parties: STATE v. DENGEL.
• Court: Washington Supreme Court

63 P. 1104

24 Wash. 49

STATE v. DENGEL.

Supreme Court of Washington

February 15, 1901

Appeal from superior court, Yakima county; John B. Davidson, Judge.

Fred P Dengel was convicted of robbery, and he appeals. Reversed.

Graves & Englehart, for appellant.

John J Rudkin, for the State.

REAVIS C.J.

Defendant together with one Cox and one Smith, were jointly informated against for robbery. The information charged the defendants jointly with robbery, committed as follows: 'That the said Fred P. Dengel, John Cox, and Annie Smith, on the 10th day of May, 1900, A. D., in the county of Yakima, state of Washington, then and there being, did then and there forcibly and feloniously take from the person of one Norman Stevens the sum of fifty-two dollars, lawful money of the United States, and of the value of fifty-two dollars, by violence and putting in fear him, the said Norman Stevens; contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Washington.' Defendant was tried separately, and declined the services of counsel until after a verdict of guilty was returned by the jury. The evidence for the state was that Stevens, while drunk and carousing in a house of ill repute, became ill, and went out into the yard in the rear of the house; and after dark, and while alone, a man whom he recognized as the derendant Dengel came up, and presented a pistol at him, and took $52 in money from his person. No one else saw the alleged robbery. The defendant testified that he was at the house the night of the alleged robbery; that he saw Stevens sitting out in the rear of the house, in the dark, on a chair, and that Stevens was at the time drunk and unconscious; that defendant put his hand in Stevens' pocket, and took out a $20 gold piece; that defendant had no pistol, and used no force in taking the money; and that Stevens made no resistance or outcry. After the verdict of guilty was returned, defendant, by counsel, moved for a new trial on the ground of errors of law occurring at the trial, and insufficiency of the evidence to justify the verdict, and that the facts stated in the information do not constitute a crime, in that the information does not allege the ownership of the money alleged to have been stolen.

1. It will be observed that no fact stated in the information negatives the ownership of the money taken from the person of Stevens in the defendant. The ownership is not alleged in another than defendant. Blackstone defines robbery as follows: 'Robbery is the felonious and forcible taking from the person of another of goods or money to any value, by violence or putting in fear.' This is nto common-law definition of robbery. The statute (section 7103 2 Ballinger's Ann. Codes & St.) reads: 'Every person who shall forcibly and feloniously take from the person of another, or from his immediate presence, any article of value, by violence or putting in fear, shall be deemed guilty of robbery. * * *' 2 Bish. Cr. Law (8th Ed.) par. 1159, observes: 'The indictment for robbery charges a larceny, together with the aggravating manner which makes it, in the particular instance, robbery. For example, the property is described the same as in larceny, the ownership is in the same way set out, and so of the rest.' This definition is cited with approval in State v. Johnson, 19 Wash. 410, 53 P. 667. The same author, in his work on Criminal Procedure (section 1006), declares that the ownership must be alleged and proved in robbery as in larceny; and the same rule has been announced under the California statute, which is substantially like the statute of this state. People v. Vice, 21 Cal. 345; Same v. Jones, 53 Cal. 58; Same v. Ammerman, 118 Cal. 23, 50 P. 15. And in Texas: Smedly v. State, 30 Tex. 214; Barnes v. State, 9 Tex. App. 129. In Missouri: State v. Lawler, 130 Mo. 366, 32 S.W. 979. In Nevada: State v. Nelson, 11 Nev. 334. See, also, 3 Greenl. Ev. (15th Ed.) § 224. The rule is stated in 18 Enc. Pl. & Prac. p. 1223: 'As a general rule, it is necessary to charge the ownership of the property alleged to have been taken; but in some jurisdictions an erroneous allegation in...