State v. McCoy.

• Decision Date: 26 November 1907
• Citation: 63 W.Va. 69
• Parties: State v. McCoy.
• Court: West Virginia Supreme Court

63 W.Va. 69

State

v.McCoy.

Supreme Court of Appeals of West Virginia.

Submitted June 12, 1907.

Decided November 26, 1907.

1. Indictment Description of Property,

An indictment for robbery of "one promissory note of the value of $50.85, one purse of the value of 25 cents and one time check of the value of 50 cents," sufficiently describes the property, (p. 71.)

2. Same Intent.

The animus fur'andi, for the intent to take and deprive another of his property, is an essential element in the crimes of robbery and larceny, (p. 72.)

3. Same In tr u ctio n.

An instruction to the jury, in a trial for one of such offenses, which ignores this essential element, is bad, and the giving thereof constitutes reversible error, (p. 72.)

4. Criminal Law Appeal Presumptions.

In this state the presumption is that an exceptor is prejudiced by the giving of an erroneous instruction; and a judgment based thereon will be reversed for this cause, unless it clearly appears from the record that he could not have been prejudiced by the giving thereof, (p. 73.)

Error to Circuit Court, Mingo County.

Tug McCoy was convicted of robbery, and brings error.

Reversed. Remanded.

John L. Stafford and Marcum & Marcum, for plaintiff in error.

Clarke W. May, Attorney-General, for the State. Miller, President:

Tug McCoy, who stood indicted for robbery jointly with one Goodman, was tried alone in October, 1905, but the verdict of conviction was set aside-and a new trial awarded. In July, 1906, he was again put upon trial, the jury acquitting him of robbery but finding him guilty of grand larceny. From the judgment overruling his motion for anew trial and of imprisonment for three years he is prosecuting this writ of error.

The judgment overruling his demurrer to the indictment and his motion for a new trial, giving instructions numbers one and two of the state, and refusing his instruction number one, are the alleged errors relied upon. The substantial charge in the indictment, containing but one count, is that McCoy and Goodman, on the first day of June, 1905, in Mingo county, armed with a loaded pistol, feloniously assaulted E. F. Chapman and put him in bodily fear, "and one promissory note of the value $50.85, one purse of the value of 25 cents, one time check of the value of 50 cents, and divers United States Treasury notes, divers United States silver certificates, divers United States bank notes, divers United States gold certificates, United States coin and United States gold coin in the aggregate of $19.33, and of the value of the goods, chattels, property and money of the said E. F. Chapman, from the person and against the will of the said E. F. Chapman, then and there, towit, on the day and year aforesaid, in the county aforesaid, feloniously and violently did steal, take and carry away, against the peace and dignity of the state."

Robbery at common law is the felonious taking from the person of another of goods or money to any value, by violence or putting in fear. Our statute does not define robbery. Code, section 12, chapter 144, prescribes the punishment: "If any person commit robbery, being armed with a dangerous weapon, he shall be confined in the penitentiary not less than ten years; if not so armed, he shall be confined therein not less than five years." Robbery is but larceny, with the aggravated circumstances of force and arms added. Code, section 15, chapter 145, provides that "if any person steal any bank note, check or other writing or paper of value, or any book of accounts for or concerning money or goods due or to be delivered, he shall be deemed guilty of larceny thereof, and receive the same punishment, according to the value of the thing stolen, that is prescribed for the punishment of larceny of goods or chattels." It is only by force of this statute that bank notes, checks and other writings and papers of value are made the subject of larcency; at common law they were not so.

Counsel for the prisoner and for the state both argue alleged ground of demurrer, but the record shows no demurrer or action of the court thereon. The only ground of demurrer is the omission of a more particular description of the note and check. As a general rule, an offense is sufficiently charged if stated in the language of the statute, and with respect to notes, checks and other writings the name or designation by which they are commonly known is sufficient. Frederic v. State, 3 W. Va, 695; Commonwealth v. Gallagher, 126 Mass. 54; Commonwealth v. Brettum, 100 Mass. 206; Dignowitty v. State, 17 Tex. 521; Commonwealth v. Campbell, 103 Mass. 436. It is conceded that the indictment is good with respect to the United States money alleged to have been stolen, but it is claimed that the aggregate value thereof was insufficient to make the offense grand larceny, and that, the indictment being bad as to the note and check, the value of the money and purse would not raise the offense to grand larceny. If this were so, it would not make the indictment bad on general demurrer; for as to such of the subjects of larceny as were not sufficiently...