State v. Rodgers
| Decision Date | 16 May 1898 |
| Citation | 53 P. 97,21 Mont. 143 |
| Parties | STATE v. RODGERS. |
| Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county; Henry C. Smith Judge.
Frank Rodgers was convicted of robbery, and he appeals from the judgment, and from an order refusing a new trial. Affirmed.
J. M Clements and Harry Harris, for appellant.
C. B Nolan, for the State.
The defendant was convicted of the crime of robbery in the district court in Lewis and Clarke county, and appeals from the judgment of conviction, and an order refusing him a new trial.
Counsel for appellant contends that the following instruction given by the court is erroneous: "You will observe, however, that fear is not charged in this information, that the defendant is accused of taking money by force, and it is incumbent upon the state to prove to you beyond a reasonable doubt that the money was taken; that it was taken from the person or immediate presence of Joseph Sullivan against his will, by the defendant, accompanied by means of force." His position is that this instruction defines the crime of robbery, and that it assumes that a felonious intent is not an essential of the crime, when the robbery is committed by means of force, as distinguished from a case wherein the crime is committed by putting the victim in fear. We cannot agree with this argument. This instruction does not attempt to define robbery. The court had properly done this in a previous instruction. This instruction merely tells the jury that the ingredient of fear is not charged in the information, and that it is therefore incumbent on the state to prove beyond a reasonable doubt that the crime was committed by means of force. This was simply telling the jury that they need not inquire whether the defendant's victim was put in fear, but to inquire only as to whether he committed the crime, if at all, by means of force. We fail to see any error in this instruction. This case is very different from the case of State v. Oliver, 20 Mont. 318, 50 P. 1018, cited as authority by counsel in his brief. In State v. Oliver the court, in defining robbery, omitted entirely from the instruction the word "feloniously." This court held the instruction fatally bad for that reason. But in the case at bar there is no such omission.
Counsel for appellant assigns as error the giving of instruction No.7 by the court. This instruction reads as follows: "In this case the allegation of the information, so far as regards the description of the property alleged to have been taken from Joseph Sullivan by the defendant, is sustained if you are satisfied beyond a reasonable doubt that the defendant feloniously took any money, bank notes, or pieces of coin in the possession of Joseph Sullivan from Joseph Sullivan's person or immediate presence, and against his will, accompanied by means of force, and that the property so taken had some value." This instruction is based upon section 2109 of the Penal Code, which is in part as follows "Upon a trial for larceny of money, bank notes, certificates of stock, or valuable securities, the allegation of the indictment or information, so far as regards the description of the property, is sustained, if the offender be proved to have embezzled or stolen any money, bank notes, certificates of stock, or valuable securities, although the particular species of coin or other money,...
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