State v. Lawler

• Court: Missouri Supreme Court
• Writing for the Court: Sherwood, J.
• Citation: State v. Lawler, 130 Mo. 366, 32 S.W. 979 (Mo. 1895)
• Decision Date: 19 November 1895
• Parties: The State v. Lawler, Appellant

32 S.W. 979

130 Mo. 366

The State v. Lawler, Appellant

Supreme Court of Missouri, Second Division

November 19, 1895

Appeal from St. Louis Criminal Court. -- Hon. D. W. Shackleford Judge.

Reversed and remanded.

John A Gernez and J. C. Robertson for appellant.

(1) Robbery is a larceny aggravated by the manner of its accomplishment, and is compounded of larceny and force. R. S 1889, sec. 3530; State v. O'Conner, 105 Mo. 121; State v. Brannon, 55 Mo. 63; State v. Jenkins, 36 Mo. 372; State v. Brown, 104 Mo. 365; State v. Sommers, 12 Mo.App. 374; Bishop on Crim. Law [8 Ed.], sec. 1156. (2) Hence a jury may convict a defendant on trial for robbery in the first degree of larceny. See above cases. (3) That the owner is frightened on account of the theft is immaterial. To constitute robbery the theft must be in consequence of fright. Rex v. Greasil, 1 C. and P. 504; People v. MacGinty, 24 Hun (N. Y.), 62; State v. John, 5 Jones (N. C.), 163; State v. Graham, 55 N.H. 152; People v. McCloskey, 5 Park. Cr. Rep. (N. Y.) 299; State v. Clark, 12 Mo.App. 593; State v. Wills, 16 Mo.App. 553.

R. F. Walker, attorney general, and C. O. Bishop for the state.

(1) The indictment is in proper form and follows the language of the statute. R. S. 1889, sec. 3530. It is difficult to see wherein this indictment is defective, unless the statute can be so strictly construed as to require the indictment to aver that the property taken was his or hers, who was the victim of the assault; and even then this indictment is good after verdict. State v. Montgomery, 109 Mo. 645. (2) It is conceded by the motion for a new trial that the instructions given were correct in every particular, but it is claimed that the court erred in failing to instruct for larceny. Now, the facts given in the evidence on the part of the state are wholly undisputed, save only as to the identity of appellant as the perpetrator of the offense. It is evident that the two men who entered that saloon at that time did so for the purpose of stealing what money was in the cash drawer, although they may not have at the time meditated violence; but when, in the mind of the appellant, it became necessary to use violence to effect the theft, and he resorted to it to accomplish the original common design, then the contemplated larceny became a robbery as to both, and both were equally guilty of the actual taking and actual violence and intimidation. State v. Walker, 98 Mo. 95; State v. Brown, 104 Mo. 365; State v. Moore, 106 Mo. 480. And it is clear from the evidence that it was by reason of the violence and intimidation used by appellant that the confederate succeeded in getting away with the money. State v. Stewart, 29 S.W. 986. (3) The motion for new trial concedes that no improper or incompetent testimony was admitted on the part of the state, and no proper or competent testimony excluded on the part of the appellant.

OPINION

Sherwood, J.

Being adjudged guilty of robbery in the first degree and his punishment assessed at imprisonment for five years, defendant appeals to this court.

This prosecution is founded on section 3530, Revised Statutes, 1889, which reads in this way: "Every person who shall be convicted of feloniously taking the 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."

The indictment, so far as necessary to quote it in illustration of this opinion, is the following:

"With force and arms, in and upon one Lizzie Sexauer, feloniously, did make an assault, and the said Lizzie Sexauer in fear of an immediate injury to her person then and there feloniously did put, and by force and violence $ 25 good and lawful money of the United States of the value of $ 25, all of the goods and property of George Sexauer in the presence of and against the will of the said Lizzie Sexauer, by then and there putting her in fear of an immediate injury to her person, then and there feloniously and violently did rob, steal, take, and carry away."

"William Zachritz,

"Circuit Attorney."

The testimony in substance is this: George Sexauer was the proprietor of a saloon and sample room at number 2236 Wash street, in the city of St. Louis, and resided with his wife, Lizzie Sexauer, up stairs; his wife's niece, Lizzie Grof, was living with them at the time of the alleged offense. On Friday evening, May 3, 1894, Mr. Sexauer left the saloon about 9 o'clock to retire for the night. His wife and her niece came down and took charge; there were about $ 25 in money in a cash drawer behind the counter. The women sat together in the rear of the saloon sewing and chatting, and were there alone. Between 9 and 10 o'clock defendant and another man hastily entered the place, and, without saying a word, started to go behind the counter. Miss Grof saw them and gave the alarm, when both ladies sprang to their feet and rushed forward to intercept the men. Defendant pushed Miss Grof aside, seized Mrs. Sexauer by her hands and held her forcibly against the wall, and when Miss Grof undertook to pass him toward the other man, gave her a vicious kick upon the shin, forcing her over a chair and causing her such pain as to disable her. The other party got behind the counter, drew out the cash drawer entire and ran out of the saloon with it. Defendant then let Mrs. Sexauer go, and ran out also. The cash drawer, emptied of its contents, was found near the saloon that night. Defendant was arrested Sunday, May 5, about 2 o'clock A. M., and was fully identified by the ladies. His confederate was never identified, nor was any of the money recovered.

The testimony on the part of the defense tended to show that defendant was elsewhere at the time of the robbery; that he was of good character, and that the women had failed to identify him at the time of the arrest, but had been prevailed upon by police officers to swear that he was the man. Defendant, testifying in his own behalf, claimed to have been elsewhere all that night; disclaimed all knowledge of the robbery, and stated under oath that "the man that done this robbery is down in the jail now."

1. There is abundant evidence in the foregoing statement to show such circumstances of violence as are sufficient to sustain a prosecution for the crime of robbery, for it is said to be unnecessary to lay a putting in fear in the indictment or to prove the circumstance of actual fear upon the trial; for if the fact be laid to be done violently and against the will, the law in circumstances like those in the case at bar in odium spoliatoris will presume fear. 2 Russ. Cr. [9 Ed.] * 122; State v. Stinson, 124 Mo. 447, 27 S.W. 1098; Foster, 128, 129; 5 Burn's Justice, 778; 2 East, P. C. 711, 719.

2. The crime of robbery at common law has had frequent definition. Hale says: "Robbery is the felonious and violent taking of any money or goods from the person of another, putting him in fear, be the value thereof above or under one shilling." Vol. 1, 532. Hawins gives a definition substantially identical with the one just quoted. Vol. 1, 147. East defines the crime thus: "A felonious taking of money or goods, to any value, from the person of another, or in his presence, against his will, by violence or putting him in fear." Vol. 2, 707.

It will be observed that the definition as given by East is more full than those given by the other authors, in that the words "or in his presence," and "against his will" are used alone by East and not by the others, in defining the crime. The words "in his presence" were added to the words "from his person" by judicial construction, as substitutionary of, and tantamount in meaning to "from his person," and this in order to prevent an evasion of the law. East, 723, 725, 728.

The common law authorities all agree that in order to constitute the crime of robbery, the taking must be laid in the indictment, and proven on the trial to be from the person or in the presence of the owner. Thus Russell: The taking need not be immediately from the person of the owner; * * * But it is clear, that the property must be taken in the presence of the owner," etc., etc., giving instances. 2 Russ. Cr. [9 Ed.] * 106, * 107; 2 East Ch. 16, sec. 126, p. 707; Roscoe's Crim. Ev. [7 Ed. 908, 911; 3 Greenl. Ev. [14 Ed.], secs. 224, 228; Barb. Cr. L. [2 Ed.], 143.

In an early case it was ruled that if a man's servant be robbed of his master's goods in sight of his master, it shall be taken for a robbing of the master. Wright's case, Style, 156.

In Rex v. Francis, 2 Str. 1015, where some thieves gently struck the hand of the prosecutor, whereby some money which he had taken out of his pocket to give change, fell to the ground, and he offering to take it up, they threatened to knock his brains out, whereupon he desisted, and the thieves "immediately" took it up, all of which matters were set forth in a special verdict, the judges were of opinion that, inasmuch as it was not sufficiently expressed in the verdict that the money was taken by the thieves in the "sight or presence of the owner," that therefore they could not be held guilty of robbery.

In Tennessee this case arose: The dwelling house of the prosecutor was entered while he and his family were asleep and he was aroused by the presentation of a pistol at his head, and a demand for money. Alarmed and excited, he sprang from his bed, and he and his sister, Winnie Barnly, in whom, the property taken is laid in one count of the indictment, rushed out of a door and fled to a neighboring house. In their absence, and before their return, one of the prosecutor's daughters was compelled to go up stairs and bring down their father...