State v. Howerton
| Decision Date | 31 January 1875 |
| Parties | STATE OF MISSOURI, Respondent, v. JOHN HOWERTON, et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court.
G. H. Walser, for Respondent.
Hockaday, Attorney General, for Appellants, cited in argument, State vs. Wilcoxen, 38 Mo., 370; State vs. Davidson, 38 Mo., 374.
The defendant was indicted for robbery in the first degree, and on his motion the indictment was quashed, and the State appealed. The indictment charged that the defendant, “with force and arms, in and upon one William Gennan, feloniously did make an assault, and the said William Gennan in bodily fear and danger of his life, then and there feloniously did put; and two mules, each of the value of seventy-five dollars, and two harness, each of the value of twenty dollars, and one wagon, of the value of fifty dollars, of the goods and chattels of the said William Gennan, from the person and against the will of the said William Gennan, then and there, feloniously and by force and violence, did rob, steal, take and carry away,” etc.
The statute defining robbery in the first degree, declares, that “every person who shall be convicted of feloniously taking the personal property of another from his person, or in his presence and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree.” (Wagn. Stat., 456, § 20.)
I am inclined to think that the indictment is bad. It is alleged that the defendant feloniously made an assault upon Gennan, and feloniously put him in bodily fear and danger, and then took the personal property of Gennan against his will, and feloniously by force and violence did rob, steal, take and carry away, etc. Although not following the precise language of the statute, the indictment is substantially good so far as it goes. But some of the essential elements necessary to constitute robbery in the first degree are left out.
In robbery in the first degree, it is indispensable that the putting in fear should be of some immediate injury. This distinguishes it from robbery in the second degree, (§ 21) where the fear may arise from the threatened injury to be inflicted at a different time. Unless the violence which puts the party in fear is of some immediate injury to his person, there can be no robbery in the first degree.
The omission to make this charge is a substantial defect,...
To continue reading
Request your trial
-
the State v. Parker
... ... must be shown. Robbery in the first degree under our statute ... and decisions, involves an intentional putting in fear, or ... the use of violence by the defendant. State v ... Sommers, 12 Mo.App. 375; State v. Smith, 119 ... Mo. 439; State v. Jenkins, 36 Mo. 372; State v ... Howerton, 59 Mo. 91. It is of the very essence of ... robbery in the first degree, that the violence shall be ... present and immediate, and without it so being there is no ... case made. State v. Smith, 119 Mo. 439. It is not ... robbery to obtain property from another, without violence to ... the ... ...
-
State v. Houx
... ... affirmatively alleged that Mattie Sidenstricker was "a ... woman above the age of twelve years," following the ... language of the statute. 1 R. S. 1879, sec. 1253; ... Wharton's American Criminal Law [4 Rev. Ed. 1858] secs ... 364-374; State v. Ross, 25 Mo. 426; State v ... Howerton, 59 Mo. 91. (5) It was gross and prejudicial ... error to allow the state to make out her case by acts and ... conduct of the mother, and the physical condition of Mattie, ... varying from an hour to three months after the act of sexual ... intercourse. State v. Jones, 61 Mo. 232; Greenleaf ... ...
-
The State v. Weinhardt
... ... Howerton, 59 Mo. 91. (2) Where there is evidence of any ... witness tending to establish the commission of an offense ... included in the one embraced in the information, but of a ... lesser degree, it is the duty of the court to instruct the ... jury upon such lower grade of offense. Secs. 4904, 5231, ... ...
-
The State v. Rowlen
...at common law. State v. Ross, 25 Mo. 426; State v. Holden, 48 Mo. 93; State v. Evers, 49 Mo. 542; State v. Keel, 54 Mo. 182; State v. Howerton, 59 Mo. 91. "So important are the necessary allegations in indictment to give full notice of the offense, that the legislature cannot dispense with ......