State v. Deso

• Decision Date: 04 October 1938
• Docket Number: No. 361.,361.
• Citation: 1 A.2d 710
• Parties: STATE v. DESO.
• Court: Vermont Supreme Court

1 A.2d 710

STATE

v. DESO.

No. 361.

Supreme Court of Vermont. Chittenden.

Oct. 4, 1938.

Exceptions from Chittenden County Court; Olin M. Jeffords, Judge.

Donald Deso was prosecuted for felonious assault, robbing and stealing money, the subject of larceny, and being armed with a dangerous weapon with the intent to maim. The trial court failed to rule upon defendant's motion for a directed verdict and permitted the State to enter a nolle prosequi, and defendant brings exceptions.

Exceptions overruled.

Argued before POWERS, C. J., and MOULTON, SHERBURNE, BUTTLES, and STURTEVANT, JJ.

Lawrence C. Jones, Atty. Gen., and K. Paul Fennell, State's Atty, of Burlington, for the State.

P. C. Warner, of St. Albans, and Leon D. Latham, Jr., of Burlington, for respondent.

SHERBURNE, Justice.

The first count of the information in this case charges that "Donald Deso— on — at —did then and there unlawfully, wilfully and feloniously assault Michael A. Mangini and then and there rob, steal and take from the said Mangini, Thirty-two ($32.00) Dollars, of the lawful money of the United States, then and there the subject of larceny, then and there being armed with a dangerous weapon, to wit, a revolver, with intent to maim the said Mangini, if he, the said Mangini then and there had resisted * * *." The second count is for aiding and abetting Warren Rich in the commission of this offense.

The State's evidence tended to show that the respondent and Warren Rich returned together from St. Albans to Burlington, and that on the way they planned to hold up a store at the latter place. After walking around the streets of Burlington they went into one store and made a purchase, but not liking the looks of the proprietor, withdrew without attempting a holdup. They then walked along the street until they came to the variety store of Michael Mangini, which they decided would be a good one to hold up before they entered. At this time Deso had an empty revolver in his pocket and a box of cartridges for it, while Rich had some brass knuckles he had gotten from Deso and an empty automatic revolver but no cartridges for it. They went into the store and bought some ice cream sodas. While they were sitting down and eating these, Deso asked Rich who was going to hold up the proprietor, and Rich said he would. Rich then got up and asked Mangini for some cigars, and when Mangini went to get them Rich stepped in behind him and stuck his revolver in his ribs and told him to "stick them up," while Deso went to the cash register and took thirty dollars. Before going into the store Rich had decided to use his revolver as a club but had not told Deso of this intention, and when Mangini resisted he would have hit him with it, but. Mangini was too quick for him and he didn't have a chance. They both fled and were later apprehended.

After the State had rested the respondent moved for a directed verdict, whereupon, at the court's suggestion, the State was permitted to enter a nolle prosequi. The respondent excepted to the failure of the court to rule upon his motion for a directed verdict and to permitting the State to enter a nolle prosequi.

It has long been the law of this State, as at common law, that where an indictment or information charges an offense which includes within it another lesser offense or one of lower degree it is sufficient to prove so much of the charge as proves the respondent to have been guilty of a substantial crime, therein stated, although not to the full extent charged against him. So if the State fail to prove the greater offense, but prove the less, the respondent may be convicted of the less. State v. Scott, 24 Vt. 127; State v. Thornton, 56 Vt. 35; State v. Albano, 92 Vt. 51, 55, 102 A. 333, and cases cited in these cases. An indictment or information in such a case charging the highest degree includes the lower degrees. State v. Albano, supra, and cases cited.

The information charges an offense under P.L. 8400, which provides: "A person who assaults another and feloniously robs, steals and takes from his person money or other property, the subject of larceny, being armed with a dangerous weapon, with intent if resisted to kill or maim the person robbed, shall be" punished in a certain manner. In the following sections penalties are provided for robbery by force, or by assault and putting in fear, by one not armed with a dangerous weapon; for an assault armed with a dangerous weapon with intent to rob; and an assault not so armed with intent to rob. By P.L. 2441, a person tried for robbery may be convicted of larceny if the jury finds that offense proved.

The requirement of taking from the person as used in the statute is satisfied by a taking from the presence, as at common law. Com. v. Homer, 235 Mass. 526, 127 N.E. 517; Wood v. State, 98 Fla. 703, 124 So. 44; Crawford v. State, 90 Ga. 701, 17 S.E. 628, 35 Am.St.Rep. 242; People v. O'Hara, 332 Ill. 436, 163 N.E. 804; State v. Calhoun, 72 Iowa 432, 34 N.W. 194, 2 Am.St.Rep. 252; People v. Cabassa, 249 Mich. 543, 229 N.W. 442; Turner v. State, 1 Ohio St. 422; Hill v. State, 145 Ala. 58, 40 So. 654. A thing is in the presence of a person in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession. Com. v. Homer, supra.

The respondent makes no question but that the allegations in the information are sufficient to charge a statutory crime, but claims that the allegations are insufficient to sustain a conviction for a simple assault, robbery or larceny, or for aiding and abetting therein. As no faults are pointed out, we need not seriously consider such claims. Although the information may be informal, for instance, it fails to allege ownership of the money, an omission which is amendable, State v. Nelson, 91 Vt. 168, 171, 99 A. 881, we may safely assume that if the information is sufficient to charge the highest offense, as admitted by the respondent, it also includes all the lower degrees, down to and including simple assault.

Upon the evidence the respondent could have been convicted of all the degrees of robbery and attempt to rob which we have mentioned, except the highest, and of larceny, or he could have been found guilty of simple assault only, as he was guilty of a battery as well as an assault when his confederate stuck his revolver into Mangini's ribs. State v. Roby, 83 Vt. 121, 129, 74 A. 638. Under the provisions of P.L. 8741 and the rules laid down in State v. Orlandi, 106 Vt. 165, 171, 170 A. 908, there is no question but that the evidence made out a case against the respondent on both counts of the information, both as a principal and as aiding and abetting.

Assuming that there had been no battery, and laying aside the intent to use the revolver as a club, we do not endorse respondent's contention that pointing an unloaded revolver at a person can under no circumstances constitute an assault because the aggressor does not have the present ability to inflict injury upon the person assailed. It is true that many courts so hold, and it is frequently declared in criminal statutes defining assault that it must appear that the assailant had the present ability to commit the contemplated injury. Some confusion has arisen in the authorities because of the failure of the courts to draw a distinction between simple assault and felonious assault. It is to be doubted whether the rule thus adopted that an assault is not committed where one aims an unloaded gun at another is strictly in accord with the principles governing assault and battery, and in most instances an examination of the statutes of the particular jurisdictions following the rule stated above will disclose that an assault cannot be committed unless the assailant has the ability to consummate the act. In those jurisdictions where it is the rule that an assault cannot be committed unless the assailant has the actual ability to consummate the act, the state of mind of the party assailed is not taken into consideration. 4 Am.jur, Assault and Battery, § 14.

In our opinion the true rule is stated by Mr. Bishop in his work on Criminal Law (Vol. 2, 8th ed, § 32) in the following language: "There is no need for the party assailed to be put in actual peril, if only a well founded apprehension is created. For his suffering is the same in the one case as in the other, and the breach of the public peace is the same. To illustrate,—If, within shooting distance one menacingly points at another with a gun, apparently loaded yet not in fact, he commits an assault the same as if it were loaded. There must be some power, actual or apparent, of doing bodily harm, but apparent power is sufficient. In the instance we are referring to, the person assaulted is really put in fear." This position is supported by Com. v. White, 110 Mass. 407; Price v. United States, 9 Cir., 156 F. 950, 15 L.R.A.,N.S., 1272; State v. Barry, 45 Mont. 598, 124 P. 775, 41 L.RA,N.S, 181; Beach v. Hancock, 27 N.H. 223, 59 Am.Dec. 373; State v. Shepard, 10 Iowa 126, 127; State v. Smith, 2 Humph., Tenn., 457; State v. Daniel, 136 N.C. 571, 48 S.E. 544, 103 Am.St. Rep. 970. As said in Com. v. White, supra, "It is not the secret intent of the assaulting party, nor the undisclosed fact of his ability or inability to commit a battery, that is material; but what his conduct and the attending circumstances denote at the time to the party assaulted. If to him they indicate an attack, he is justified in resorting to defensive action. The same rule applies to the proof necessary to sustain a criminal complaint for an assault. It is the outward demonstration that constitutes the mischief which is punished as a breach of the peace."

Our attention is called to Clark v. Downing, 55 Vt. 259, 45 Am.Rep. 612, a civil case for assault and battery, where it is said: "If the party threatening the assault have the ability, means, and apparent...