State v. Jenkins

• Decision Date: 31 October 1865
• Citation: State v. Jenkins, 36 Mo. 372 (Mo. 1865)
• Parties: STATE OF MISSOURI, Respondent, v. DUDLEY JENKINS, Appellant.
• Court: Missouri Supreme Court

36 Mo. 372

STATE OF MISSOURI, Respondent,

v.DUDLEY JENKINS, Appellant.

Supreme Court of Missouri.

October Term, 1865.

Appeal from Cape Girardeau Circuit Court.

The facts are stated in the opinion. The instructions as given were:

1. If the jury believe from the testimony that a body of armed men went to the house of William H. McLane, and by force or threats caused him to fear that an injury would be done to his person or property, so that he concealed himself for his own protection, and that, while so concealed, his horse was feloniously taken and carried away by said body, or any of them, each of the persons engaged in any way in the transaction are equally guilty; and if the defendant was one of them, the jury may find him guilty of robbery in the second degree.

2. Such fear as prevents resistance is sufficient, and this may be presumed from the circumstance of the transaction, or from words used by either of the parties.

3. If the jury find the defendant guilty, they will state in what degree, and assess the punishment.Clover and Jecko, for appellant.

I. The elements of the offence of robbery in the first degree, as defined by our statute, are--

1. The feloniously taking the property of another, which is larceny by itself.

2. From the person, or in the presence of, the owner.

3. Against his will.

4. By violence to his person, or, which is the same thing, by putting him in fear of some immediate injury to his person.

The elements of the offence of robbery in the second degree, as defined by our statute, are--

1. The feloniously taking the personal property of another.

2. In his presence, or from his person.

3. Which shall have been delivered or suffered to be taken.

Substituting this language for the expression “against his will,” as used in the definition of the offence of robbery in the first degree, as above; and,

4. Through fear of some injury to his (own) person or property, or to the person of any relative or member of his family, threatened to be inflicted at some different time (as distinguished from fear of immediate injury), which fear shall have been produced by the threats of the person so receiving or taking such property.

II. The proposition is asserted, that, under this indictment, which is an indictment for robbery in the first degree, the defendant could not be lawfully convicted of the offence of robbery in the second degree.

The Legislature has created three distinct offenses, differently defined--as robbery in the first, second, and third degrees--and differently punishable. In each case, the indictment must specify the nature of the offence; and it must inform the defendant of the nature of the offence with which he is charged.

This offence of robbery is not of that character embraced in the legislation to be found in the 14th sec. of Art. IX. of the “Act concerning crimes and their punishment” (R. C. 1855, p. 640), whereby it is provided that upon indictment for any offence consisting of different degrees, as prescribed by the act, the jury may find the defendant not guilty of the offense charged in the indictment, and may find him guilty of any degree of such offence inferior to that charged in the indictment, or of any attempt to commit such offence or any degree thereof.

If the inferior degree be included in the allegations of the indictment then the statute applies, otherwise when the inferior degree is not so included. (State v. Shoemaker, 7 Mo. 177; Conner v. State, 14 Mo. 570; Mallison v. State, 6 Mo. 399; Plummer's case, 6 Mo. 240; McGee v. State, 8 Mo. 495.)

III. If the proposition contained in the first instruction be law, there s no protection for the most innocent of mankind. The defendant may have been a rebel, and yet utterly incapable of robbing Col. McLane of his horse; and yet without proof, so far as the instruction goes, he is to be held liable for the act of another, done in his absence, without his knowledge, against his will, and without any common intent for which he might be made liable.

IV. By intendment of law, the defendant has been forever acquitted of the offence of robbery in the first degree, with which he stands charged the indictment, and upon which he can never again be tried. (State v. Phillips & Ross, 24 Mo. 475).

J. P. Vastine, for respondent.

HOLMES, Judge, delivered the opinion of the court.

The indictment charged that William Jeffers, on the thirtieth day of September, A. D. 1862, at the county of Cape Girardeau and State of Missouri, “in and upon one William H. McLane, with force and arms, feloniously did make an assault, and the said William H. McLane in bodily fear of some immediate injury to his person then and there feloniously did put, and one horse, of the value of one hundred dollars, the property...