State v. Johnson

• Decision Date: 10 October 1892
• Citation: 111 Mo. 578,20 S.W. 302
• Parties: STATE v. JOHNSON.
• Court: Missouri Supreme Court

20 S.W. 302

111 Mo. 578

STATE v. JOHNSON.

Supreme Court of Missouri, Division No. 2.

October 10, 1892.

ROBBERY — INSTRUCTIONS — DEFINITION OF "FELONIOUS."

1. The word "felonious," though not proper in an instruction for robbery to express the intent with which the act was done, because expressing an entire class of offenses, instead of an element of a particular offense, should, when used, be defined as a word of technical meaning, after which the facts necessary to the intent should be stated. State v. O'Connor, 16 S. W. Rep. 510, 105 Mo. 121; State v. Hayes, 16 S. W. Rep. 514, 105 Mo. 76; and State v. Brown, 16 S. W. Rep. 406, 104 Mo. 366, — explained.

2. An instruction declaring that if defendant "alone, or in company with others," did unlawfully take certain money, he was guilty of robbery, is erroneous, where there is no evidence that defendant personally took the money, but only of a concerted action between him and another; and since, under Rev. St. 1889, § 3944, no matter what part each of them took, each would be guilty as principal.

Appeal from circuit court, Marion county; THOMAS H. BACON, Judge.

Thomas Johnson, having been convicted of robbery, appeals. Reversed.

W. M. Boulware, for appellant. John M. Wood, Atty. Gen., for the State.

MACFARLANE, J.

Defendant appeals from a judgment of the circuit court of Marion county convicting him of robbery. He was jointly indicted with one Maria Raven and his daughter, Mary Johnson, all negroes, accused of robbing a Chinaman named Lee, and taking from him three $20 gold coins. Defendant was tried alone, and sentenced to imprisonment in the penitentiary for five years. The evidence on the part of the state, given by the prosecutor, Lee, corroborated by some slight circumstances, tended to prove that defendant induced the wife of Lee, a negro woman, to leave her husband, and took her and her infant child to his house on Sunday before the alleged robbery. On Tuesday night thereafter, about 8 o'clock, defendant, his daughter Mary, a girl about 12 years of age, the negro woman Maria Raven, and Lee's wife, all went, in company, to the house of Lee, for the ostensible purpose of getting some clothes for the child. They were admitted into the house, and defendant knocked Lee down, forced him into another room, held him down on the floor, while the woman Raven opened his trunk, and took therefrom three $20 gold coins, which she carried away. Some time after the alleged robbery he testified that the money was paid back to him by a man named Kelso, under an agreement made with the wife of defendant. The evidence of defendant contradicted nearly every material statement of Lee. It tended to prove that Lee told his wife to come and get clothes for the baby. The parties went on this invitation. Defendant and Lee had a quarrel and fight in the house, growing out of some treatment by Lee of his wife. Defendant and others testified that no money was taken. Defendant testified that when he went to Lee's house he did not know he had money, and, if any was taken, he knew nothing of it then or afterwards.

Upon this state of facts the court gave the jury two instructions, of which defendant complains, as follows: "(2) If from the evidence the jury find that at the township of Liberty in the county of Marion and state of Missouri, on or about the 17th day of March, in the year 1891, to wit, within three years next before June 3, 1891, the defendant, either alone or in company with others, in and upon one Sam Jim Lee, unlawfully and feloniously did make an assault, and then and there three twenty-dollar gold coins of the United States of America, of the value of sixty dollars, of the property of said Sam Jim Lee, in the presence and against the will of said Sam Jim Lee, then and there, by force and violence to the person of said Sam Jim Lee, and by putting said Sam Jim Lee in fear of some immediate personal injury to his person, did then and there unlawfully and feloniously rob, steal, take, and carry away, the jury will find the defendant guilty as charged, and assess his punishment at imprisonment in the state penitentiary for not less than five years, but, in default of such finding, the jury will find the defendant not guilty. (3) If from the evidence the jury find that, at the time and place alleged, the defendant Thomas Johnson, and his codefendant Maria Raven, were acting in concert for the purpose of committing the alleged robbery, if any, and that in pursuance of such common design, if any, the defendant Maria Raven, in aiding and abetting said defendant Thomas Johnson, with his knowledge and consent, and in his presence, took the money in question, so as to commit the alleged robbery at the time and place, and in the manner, as shown in the first instruction herein, the said act of Maria Raven, if any, in taking said money, will be also the act of defendant Thomas Johnson." No other instructions defining the crime of robbery were given.

1. Defendant insists, in the first place, that instruction 2 does...