State v. Paisley

• Citation: 92 P. 566,36 Mont. 237
• Parties: STATE v. PAISLEY.
• Decision Date: 02 December 1907
• Court: United States State Supreme Court of Montana

92 P. 566

36 Mont. 237

STATE v. PAISLEY.

Supreme Court of Montana

December 2, 1907

Appeal from District Court, Silver Bow County; Michael Donlan Judge.

William Paisley was convicted of robbery, and he appeals. Affirmed.

Peter Breen, J. B. Kremer, and Jesse B. Roote, for appellant.

Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for the State.

HOLLOWAY J.

On March 24, 1906, the county attorney of Silver Bow county filed an information in the district court charging the defendant and appellant, William Paisley, with the crime of robbery. It was also charged in the information that in March, 1902, the defendant was convicted of the crime of burglary in the district court of Larimer county, Colo.; and it is further charged that in May, 1898, the defendant was convicted of the crime of assault to rob and burglary in the district court of Park county, Colo. To this information the defendant entered a plea of not guilty. A trial was had which resulted in a verdict finding the defendant guilty of robbery as charged, and which verdict also found that the charges of prior convictions were true. Upon this verdict there was rendered and entered a judgment against the defendant, fixing his punishment at imprisonment in the state prison for 50 years. From the judgment, the defendant appeals.

1. It is contended by the appellant that the information does not state facts sufficient to constitute the crime of robbery. Sections 390 and 391 of the Penal Code read as follows:

"Sec. 390. 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.

"Sec. 391. The fear mentioned in the last section may be either: (1) The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his, or member of his family; or (2) The fear of an immediate and unlawful injury to the person or property of any one in the company of the person robbed at the time of the robbery."

The charging part of the information is as follows: "That at the county of Silver Bow, state of Montana, on or about the 9th day of January, A. D. 1906, and before the filing of this information, the said defendant, William Paisley, did willfully, unlawfully, intentionally, feloniously, and violently, and by means of force and putting in fear, take from the possession and from the immediate presence of one Thomas J. Mullane, and against the will of the said Thomas J. Mullane, three thousand five hundred and eighty-six dollars, lawful money of the United States of America, and of the value of three thousand five hundred and eighty-six (a more particular description of which said personal property is to the county attorney aforesaid unknown), which said personal property was then and there in the possession and in the immediate presence of Thomas J. Mullane, which said personal property was then and there owned by the Hennessy Mercantile Company, a corporation; and the said defendant, William Paisley, did violently, willfully, unlawfully, intentionally, feloniously, and by means of said force and putting in fear said Thomas J. Mullane, take, steal, and carry away the said personal property from the possession and immediate presence of the said Thomas J. Mullane, and against the will of said Thomas J. Mullane, with intent then and there in him, the said defendant, William Paisley, willfully, violently, unlawfully, feloniously, and intentionally, and by means of said force and putting in fear the said Thomas J. Mullane, take, steal, and carry away the said above described personal property from the possession and immediate presence of the said Thomas J. Mullane and against his will, with intent in him, the said defendant William Paisley, to deprive and defraud the Hennessy Mercantile Company, a corporation, of its said personal property, the said Hennessy Mercantile Company, a corporation being then and there the true owner of said property, and to appropriate the said personal property to his, the defendant's own use." In appellant's brief it is said that this information is insufficient, "in this: that it does not state what kind or manner of force was used, or for what purpose the force was used." It is argued that, if the force used was only such as was necessary to take the money without resistance on Mullane's part, it was not the force contemplated by section 390 above, and we think the correctness of that proposition cannot be gainsaid, otherwise there would not be any distinction between robbery and larceny from the person. Territory v. McKern, 3 Idaho (Hasb.) 15, 26 P. 123. But the question before us is: Is it necessary for the pleader, in the information, to specify the particular kind or degree of force which was used? The particular kind and degree of fear necessary is defined in section 391 above; but there is not any definition or description whatever of the kind or degree of force required to make out the crime. The language of the statute is in the disjunctive. Either force or fear is sufficient, providing the fear is of that character mentioned in section 391. In 24 Encyclopaedia of Law (2d Ed.) 996, it is said: "While the particular degree of force requisite to effect the crime is not defined by the common law, nor in many of the states by statute, if any injury is done to the person or there is any struggle by the party to keep possession of the property before it is taken from him, there will be a sufficient actual violence. If there is sufficient violence to effect and carry out the evil intent, its degree is not of much importance." In State v. Brown, 113 N.C. 645, 18 S.E. 51, the contention was made that "no force is charged" in an indictment charging robbery; but the court said: "The charge that the defendant 'did make an assault,' *** and 'put in bodily fear and danger of his life,' and 'then and there feloniously and violently did seize, take and carry away' $10 in money from the prosecutor, is a very explicit allegation of force. Indeed, the words 'feloniously and violently' were of themselves sufficient." The Minnesota Penal Code (Gen. St. 1894, § 6478) defines robbery as follows: "Robbery is the unlawful taking of personal property, from the person or in the presence of another, against his will, by means of force, or violence or fear of injury, immediate or future, to his person or property, or the person or property of a relative or member of his family, or of any one in his company at the time of the robbery." In State v. O'Neil, 71 Minn. 399, 73 N.W. 1091, the court said: "An indictment for a statutory offense is sufficient if it alleges the commission of the crime in the words of the statute, if by that means all that is essential to constitute the offense is directly charged; otherwise it is not. State v. Howard, 66 Minn. 309, 68 N.W. 1096, 34 L. R. A. 178, 61 Am. St. Rep. 403. The indictment in this case follows the words of the statute, and directly charges that the plaintiffs in error did unlawfully take from the person of Frank Johnson, against his will, by means of force and violence, $1.50. This is a direct charge that the force and violence were employed to obtain possession of the money. The degree of force employed was immaterial, and it was not necessary to allege that it was such as to put Johnson in fear of immediate injury to his person, or that of some one in his company." The information in this case is in substantially the same language as the information in the case of State v. Clancy, 20 Mont. 498, 52 P. 267, which information was held to be sufficient. Since the Code does not define the degree of force necessary to constitute the crime, we hold that it is not necessary for the information to charge the degree of force used. The Code says that, if the taking was accomplished by force, it is sufficient; and we think that the allegation that the taking was by means of force is sufficient. Again it is said: "There is no allegation in the information stating facts which bring the offense within the definition of fear as defined in section 391." But this contention may be disposed of in the language of this court in State v. Clancy, above, where it is

said: "Without deciding whether the allegation with respect to fear is insufficient, because it omits to describe the kind of fear entertained by Carroll, we think the allegation of force, which is the alternative element in the offense, rendered the information sufficient in this regard; fear being essential only in the absence of force. Eliminating the allegation of fear, the information would be good."

2. The next contention is that the allegations of prior convictions are not sufficient. The first of these allegations, omitting formal parts, is: "That heretofore, to wit, on the _____ day of March, 1902, the said defendant, William Paisley *** was, by a judgment duly given and made by the district court of the state of Colorado, in and for Larimer county convicted of the crime of burglary, and on said judgment was sentenced to serve a term of seven years in the state penitentiary of the said state of Colorado, and did so serve said time." The second is similar, except that it omits the words "and did so serve said time." Of these allegations it is said by appellant: "They are fatally defective for failure to allege the law of the state of Colorado to show that such acts were felonies in that state"; and Commonwealth v. Finn, 86 S.W. 693, 27 Ky. Law Rep. 771, is cited in support of this view. But that case is not in point here. It appears from the opinion that in Kentucky a charge of former conviction is held to be a charge of a separate offense, for the court says: "The attempt of the commonwealth was to...