State v. Montgomery

• Decision Date: 28 March 1892
• Citation: State v. Montgomery, 109 Mo. 645, 19 S.W. 221 (Mo. 1892)
• Parties: STATE v. MONTGOMERY.
• Court: Missouri Supreme Court

19 S.W. 221

109 Mo. 645

STATE v. MONTGOMERY.

Supreme Court of Missouri, Division No. 2.

March 28, 1892.

ATTEMPT TO COMMIT ROBBERY — CONSTRUCTION OF STATUTE — INDICTMENT.

1. Rev. St. 1889, § 3530, providing that "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," does not define several distinct felonies, but defines merely one felony which may be committed in several ways.

2. Where an indictment charged defendant with an attempt to commit robbery by trying to take by force $170 belonging to one M., in the latter's presence, from his person, by violence to his person and by putting him in fear of some immediate injury to his person, such averments are not repugnant with one another.

3. Under Rev. St. 1889, § 3940, every person who in an attempt to commit an offense prohibited by law does any act towards the commission of such offense, but fails in the perpetration thereof, or is prevented from committing such offense, is guilty of a crime; and an indictment charging defendant with an attempt to commit a robbery, and alleging that defendant, in such attempt, went to M.'s house, armed with an axe and pistol, broke down the door, and fired into the house, and demanded money of M., and threatened to kill him, but that the attempt failed because defendant was frightened away by M.'s shouting, sufficiently avers the doing of an act towards the commission of a crime, in an attempt to commit it.

Appeal from criminal court, Greene county; M. OLIVER, Judge.

A. J. Montgomery was convicted of an attempt to commit a robbery, and appeals. Affirmed.

Travers, Havens, Harrington & Pepperdine, for appellant. John M. Wood, Atty. Gen., for the State.

THOMAS, J.

The defendant was convicted of an attempt to commit robbery, and was sentenced to imprisonment in the penitentiary therefor for two years, by the criminal court of Greene county, in August, 1891; and he appealed. The only point insisted upon by appellant for a reversal of the judgment is the insufficiency of the indictment. The defendant, in his brief, says: "The indictment is for an attempt to rob. In an indictment for an attempt the attempted offense must be set out as though the indictment were for the commission of the offense. Section 3530 Rev. St. 1889, on which the indictment in this case is bottomed, sets forth four separate and distinct felonies, either of which constitutes robbery in the first degree: First, every person who shall feloniously take the property of another from his person by...