State v. Sanders

• Decision Date: 02 May 1905
• Citation: State v. Sanders, 14 N.D. 203, 103 N.W. 419 (N.D. 1905)
• Parties: STATE v. SANDERS.
• Court: North Dakota Supreme Court

14 N.D. 203

103 N.W. 419

STATE

v.SANDERS.

Supreme Court of North Dakota.

May 2, 1905.

Syllabus by the Court.

1. An information for robbery sufficiently describes the property alleged to have been taken if the property is described with sufficient certainty to enable the jury to say whether the chattels proved to have been stolen are the same as those referred to in the information, and to enable the court to know judicially that the articles could have been the subject-matter of the offense charged.

2. In an information for robbery accomplished by fear, it is not necessary to allege the means whereby the fear was created.

3. The complaining witness was compelled to submit to the robbery by the defendant aiming a pistol at him and ordering him to throw up his hands. Held, that the robbery was accomplished by putting in fear.

4. Proof that a robbery was accomplished by both force and fear is not a variance from an information that alleges that the taking was accomplished by fear.

5. Although an information for robbery alleges the taking of several articles, it is sufficient to prove the taking of some of them.

6. Where, in a case of robbery, the proof is such that the defendant is either guilty of the crime charged, or wholly innocent, it is proper for the court to so instruct the jury.

7. A certificate of probable cause is not alone sufficient to stay execution in a criminal case, and an application for such certificate with a view to suspending the execution of sentence pending appeal in a criminal case will not be entertained by the Supreme Court, when the defendant has neither offered to give bail, nor applied to the trial judge, under section 8340, Rev. Codes 1899, for a stay of execution without bail.

Appeal from District Court, Cass County; Charles A. Pollock, Judge.

John Sanders was convicted of robbery, and appeals. Affirmed.M. A. Hildreth, for appellant. The Attorney General and S. W. Richardson, Asst. State's Atty., for the State.

ENGERUD, J.

The appellant was tried, and found guilty as charged, upon an information which charged the crime of robbery in the following language: “That at said time and place the above-named defendants,George O'Malley and John Sanders, did feloniously and conjointly, by then and there putting him in fear of his life, and against the will and from the person of one John Sandberg, take, steal, and carry away certain personal property then and there belonging to said John Sandberg, to wit, one leather pocketbook, one small, goldframed photograph, picture of said John Sandberg, one hunting knife, and certain and divers coins, to wit, pennies, lawful money of the United States, the exact number to this affiant unknown. All of the above-described property being of the aggregate value of five ($5.00) dollars.” A motion in arrest of judgment was overruled, and this appeal is from the judgment of conviction rendered and entered in accordance with the verdict. The sufficiency of the information was attacked for the first time by the motion in arrest of judgment. It is claimed that the information is insufficient because it does not describe with sufficient accuracy the property taken, and because it does not show the means employed to put the victim of the robbery in fear. Assuming, without deciding, that such defects would be fatal to an information for robbery if not raised until after trial, we are agreed that this information is not defective in either particular. This information describes the property taken with sufficient certainty to enable the jury to say whether the chattels proved to have been stolen are the same as those referred to in the information, and to enable the court to know judicially that the articles could have been the subject-matter of the offense charged. More than this is not required. People v. Jackson, 8 Barb. 637, and authorities there cited; State v. Nipper, 95 N. C. 654. It was not necessary to allege the means whereby the putting in fear was accomplished. That the victim was in fear, and that the defendant caused it for the unlawful purpose, were part of the facts constituting the crime alleged, and to be proven. The means whereby fear was created were part of the evidentiary facts admissible to prove the fact alleged.

There were numerous objections to evidence, and finally a motion for a directed verdict of acquittal, all of which were overruled, and the rulings are assigned as error on this appeal. They are all based upon the contention that there was a fatal variance between the allegations and proof.

The evidence showed that the defendant pointed a pistol at the complaining witness, Sandberg, and made him hold up his hands while defendant's confederate O'Malley took from the pockets of their victim various articles of personal property. It is asserted that this proof of the assault with a pistol was inadmissible, because it tended to show a robbery accomplished by force, and not fear, as alleged. There is no merit in the point. The evidence shows that the taking was accomplished by both force and fear. It is clearly no variance when the proof shows more than it was necessary to prove in order to sustain the allegations. Sandberg threw up his hands and submitted to the unlawful taking of his property from his person because the presentation of the pistol and the command to throw up his hands conveyed to his mind,...