State v. Miller

• Decision Date: 03 June 1891
• Citation: 83 Iowa 291,49 N.W. 90
• Parties: STATE v. MILLER.
• Court: Iowa Supreme Court

83 Iowa 291

49 N.W. 90

STATE

v.MILLER.

Supreme Court of Iowa.

June 3, 1891.

Appeal from district court, Monroe county; E. L. BURTON, Judge.

The defendant was indicted for the crime of robbery, convicted, and adjudged to be imprisoned in the penitentiary at Ft. Madison for the term of one year. From that judgment he appeals.T. B. Perry, for appellant.

John Y. Stone, Atty. Gen., and Thos. A. Cheshire, for the State.

ROBINSON, J.

The indictment charges, in substance and effect, that defendant committed the crime of robbery on the 25th day of August, 1890, by means of putting in fear one James Graham, and by taking with force and violence, while armed with a dangerous and deadly weapon, a jug containing whisky from the person of said Graham. It appears that on the day named Graham obtained, at the express office in Albia, a jug containing whisky. He and defendant thereupon drank of its contents, and continued to do so until both were somewhat intoxicated. After spending several hours in town, they got into a passenger hack with others, to go to a place called Cedar. The jug, then containing about one quart of whisky, was placed on the bottom of the hack near them. As the hack was being driven out of Albia, Graham's attention was attracted to the front end by the act of the driver in putting on the brake at the top of a hill. While Graham's attention was thus diverted, defendant seized the jug, leaped with it from the hack, and ran back towards town. He was followedby Graham, and overtaken, after running a short distance. Just before he was overtaken defendant threw the jug over a fence, and stopped. Graham came up, got over the fence, picked up the jug, and drank from it. As to what else occurred at the fence there is conflict in the evidence, Graham and defendant alone testifying to it. Graham claims that defendant was holding in his hand a knife, which seems to have been a dangerous weapon; that he drank by direction of defendant, and was then compelled to surrender the jug by threats of great bodily injury, made by defendant, who then carried off the jug and its contents, and appropriated them to his own use. Defendant admits that he held the knife, but claims that it was in his vest pocket, and that he took it in his hand while running to prevent losing it. He denies the alleged threats, and says that, when Graham picked up the jug, he drank from it, and, placing it on the fence, told defendant to drink; that at that moment some one called, and Graham, turning to see who it was, released his hold on the jug; and that defendant then took and carried it away.

1. There was evidence which tended to show, and the jury would have been authorized to find, that, when the defendant first seized the jug, it was standing on the bottom of the hack between two seats, and that it was not in contact with Graham, nor secured in any manner; that the only force exerted by defendant in taking it was that required to lift and carry it away; that Graham's face was turned from the jug and defendant, and that he had no knowledge of the taking until after it had been accomplished, and did not resist it. In that condition of the case defendant asked the court to instruct the jury as follows: “If, at the time the defendant took the jug, the said Graham was looking out of the hack at some other object, and did not have hold of it, and it was setting on the bottom of the hack, not attached to his person, and no other force or violence was used by the defendant than merely to take hold of the jug and carry it away without the knowledge of said Graham, this does not constitute the crime of robbery.” The court refused to give the instruction asked, and failed to charge the jury in regard to the matter contained in the instruction refused. It is true the jury were told, somewhat in the language of the statute, that, to constitute the crime of robbery, the taking must have been accomplished by putting in fear, force, or violence; but they were left to infer, and that seems to have been the theory of the instructions, that no force or violence, other than that required to remove the jug without resistance, was required to constitute the crime of robbery. It is not claimed that Graham was put in fear at the hack. In our opinion, the jury should have been instructed...