State v. Oliver
| Decision Date | 22 November 1897 |
| Parties | STATE v. OLIVER. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Silver Bow county; William Clancy, Judge.
The defendant, C. M. Oliver, was convicted of the crime of robbery, and appeals. Reversed.
The defendant and appellant, C. M. Oliver, was informed against for the crime of robbery, alleged to have been committed in the county of Silver Bow, about December 8, 1896, “by feloniously and with force and intimidation, and by putting in fear one John Ball, and taking from the possession and immediate presence of the said John Ball, and against his will, the sum of thirty dollars, lawful money of the United States, *** the said money being the property of the said John Ball, with intent,” etc. The defendant was found guilty, and sentenced to the penitentiary. He appeals.
Wm. Newton, for appellant.
Guy Stapleton and C. B. Nolan, Atty. Gen., for the State.
The court gave, among others, the following instruction: “The jury are instructed that robbery is the taking of personal property in the possession of another from the person or immediate presence against his will, accomplished by means of force or fear.” The attorney general concedes that, if this instruction stood alone as a definition of the crime of robbery, the omission of the word “feloniously” would be prejudicial error. This concession, we think, is properly made, for, if there be no felonious taking of the personal property, there can be no robbery. Under section 390 of the Penal Code, robbery is “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” If a person takes personal property in the possession of another from his person and against his will, although accomplished by means of force or fear, yet, if such taking is without felonious intent in the taking, he would not be guilty of robbery. He might, for instance, be acting under a bona fide belief that the property was his own, and, if so, he could not be convicted of robbery, which necessarily requires a felonious taking. It is safer for a trial court to follow the statutory definition of a crime in defining it to a jury. In departing from this rule, the judge, no matter how learned he may be, is very apt to omit some word or clause by the omission of which, upon a review of the charge, the definition given must be held fatally defective. The crime, therefore, having been erroneously defined, we must examine the only other instruction given, under which it is said the error just referred to was cured. The jury were told that “it is not necessary, to find a verdict in the case of robbery, that the money or property was taken from the person of another, but that, if they find that the money or property was taken feloniously from the immediate presence of another, accomplished by means of force or fear, that is sufficient.” When analyzed, this instruction did not cure the error of the first, but rather emphasized it. In charging the jury that it was not necessary that the money should be taken from the...
To continue reading
Request your trial
-
Bretz v. Crist
...to know what is intended by the charge," time need not be alleged precisely unless it is element of offense); State v. Oliver, 20 Mont. 318, 50 P. 1018 (1897) (amendment at close of state's evidence to change name of alleged victim of robbery is permitted.)The current statute that controls ......
-
State v. Huff, 6344
...Missouri, Montana, Nebraska, Ohio, Pennsylvania, Texas and West Virginia. (21 Ann. Cas. 1143, note; State v. Jones, supra; State v. Oliver, 20 Mont. 318, 50 P. 1018; Sledge v. State, 99 Ga. 684, 26 S.E. 756; State Graves, 185 Mo. 713, 84 S.W. 904.) The confession of Von Hunter on Huff and B......
-
State v. Fordham
...v. McCaskey, 104 Mo. 644, 16 S.W. 511; Sledge v. State, 99 Ga. 684, 26 S.E. 756; McDow v. State, 113 Ga. 699, 39 S.E. 295; State v. Oliver, 20 Mont. 318, 50 P. 1018. cases establish the principle that the elements of the crime should be stated by the court in its charge, even in the absence......
-
State v. Mullen
...118 Wis. 621, 95 N. W. 942;State v. Bright, 105 La. 341, 29 South. 903;People v. Hildebrand, 71 Mich. 313, 38 N. W. 919;State v. Oliver, 20 Mont. 318, 50 Pac. 1018. Such statutes as the one now under consideration are becoming common to most jurisdictions, and the universal holding is that ......