State v. Scarlett
| Decision Date | 11 June 1956 |
| Docket Number | No. 44855,No. 1,44855,1 |
| Citation | 291 S.W.2d 138 |
| Parties | STATE of Missouri, Appellant, v. Robert (Bob) SCARLETT, Respondent |
| Court | Missouri Supreme Court |
John M. Dalton, Atty. Gen., John S. Phillips, Asst. Atty. Gen., for appellant.
John P. Peters, J. H. Mosby, Linn, for respondent.
This is an appeal by the State of Missouri from a judgment of the circuit court of Osage County sustaining defendant's motion to quash an information which purports to state a criminal offense against defendant. The information was filed in said court by the prosecuting attorney of said county on February 5, 1955.
The information, omitting caption, signature and verification, is as follows: 'Comes now Henry Balkenbush, Prosecuting Attorney, for and within the County of Osage, and State of Missouri, and on his official oath informs the court, that, the defendant Robert (Bob) Scarlett on or about the 21st day of December, 1954, at and within the County of Osage, and State of Missouri, did unlawfully and with felonious intent come to the door and residence of one William A. Dingley having at the time in his right hand coat pocket concealed an object resembling a pistol or revolver the same then and there appearing to be a dangerous and deadly instrument and pointing the same directly at the person and body of the said William Dingley and simultaneously in loud voice and threatening manner did demand of the aforesaid William A. Dingley that he hand over to him the defendant then and there his money; and that by the aforesaid means the defendant Robert (Bob) Scarlett did by so placing the aforesaid William A. Dingley in fear of his life and great bodily harm and injury did feloniously and unlawfully attempt to rob the said William A. Dingley of his money and effects and to permanently deprive him of the use thereof and to convert the same to his own use, contrary to the statute and laws of Missouri, in such cases made and provided, and against the peace and dignity of the State.'
The motion to quash the information assigned the following grounds:
'1. Generally, the information does not charge any offense known to the law of this State:
2. The information fails to allege an assault, and fails to allege that the person on whom the alleged attempt to rob, was made, was put in fear, in the manner and by the means, as defined in the statutes of this State, defining the Crime of Robbery.
3. The information fails to state, that the said William A. Dingley was put in fear, in the manner prescribed by the statute, by means of any weapon visible or invisible.
4. The information herein preferred by the prosecuting attorney is ambiguous, vague, and contradictory in that it assumes to charge, use in the alleged attempt, to commit robbery of William A. Dingley, by putting him in fear, of a deadly weapon which is also alleged, to have been in defendant's pocket and concealed; and only 'appeared' to be a dangerous and deadly weapon.
5. That the gravamen of the offense of robbery, as defined in our statute, is an assault or its equivalent, in the use of some means, surely invisible (sic), to put the intended victim in fear, 'of some immediate injury, to his person' and this information charges neither.'
Appellant contends the information states a criminal offense, a felony, to wit, an attempt to commit robbery in the first degree; and that the information is in proper form and should not have been quashed. Respondent has not favored us with a brief.
As the court quashed the information on the theory that it was insufficient and failed to charge an offense, the state had the right to appeal. Supreme Court Rule 28.04, 42 V.A.M.S., provides that, 'The state shall be entitled to take an appeal in the following cases and in no others: (a) when, prior to judgment, upon motion or upon the court's own view, it is adjudged that an indictment or information is insufficient; (b) when a judgment is arrested or set aside.' An appeal by the state in such cases was previously authorized by statute. Sections 547.200 and 547.210 RSMo 1949, V.A.M.S.; State v. Futrell, 329 Mo. 961, 46 S.W.2d 588.
Since it appears from the record that the instant appeal has been taken to this court on the theory that the information charges a felony, to wit, an attempt to commit robbery in the first degree, this court has jurisdiction to determine the matter. Article V, Sec. 3, Const. of Mo. 1945, V.A.M.S.
Section 560.120 RSMo 1949, V.A.M.S., provides: 'Every person who shall be convicted of feloniously taking the property of another from his person * * * by putting him in fear of some immediate injury to his person; * * * shall be adjudged guilty of robbery in the first degree.'
Section 560.135 RSMo 1949, V.A.M.S., provides that where a person is convicted of robbery in the first degree by other means than a deadly weapon, he shall be punished by imprisonment in the penitentiary for not less than five years.
Section 556.150 RSMo 1949, V.A.M.S., provides: 'Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof, shall, in cases where no provision is made by law for the punishment of such attempt, be punished as follows: * * * (2) If the offense so attempted be punishable by imprisonment in the penitentiary for life, the person convicted of such attempt shall be punished by imprisonment in the penitentiary for a term not less than two nor exceeding ten years; but if the offense so attempted be punishable by imprisonment in the penitentiary for any fixed or definite period of time other than the life of the offender, then the person convicted of such attempt shall be punished by imprisonment in the penitentiary for a term not exceeding one-half of said fixed and definite period of time'.
The term 'attempt' has been defined as follows: State v. Smith, 119 Mo. 439, 444, 24 S.W. 1000, 1001. And see State v. Bersch, 276 Mo. 397, ...
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...robbery, but the term is correctly defined in Instruction No. 2. See Sections 560.120 and 556.150 RSMo 1949, V.A.M.S.; State v. Scarlett, Mo.Sup., 291 S.W.2d 138; State v. Bersch, Error is assigned on the giving of Instruction No. 2 on the theory that it 'is outside the scope of the pleadin......
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...the victim in fear of immediate injury to his person, but it would appear not to come within the armed robbery statute (see State v. Scarlett, 291 S.W.2d 138 (Mo.); cf. State v. De Luca, 448 S.W.2d 869 (Mo.)). However, the North Carolina and Missouri statutes involved refer to actual armed ......
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...or other bailee.' As to any money taken in the robbery '(i)t was only necessary to describe defendant's money 'as money. " State v. Scarlett, Mo., 291 S.W.2d 138, 142. Thus there is no merit in the appellant's claim of error in Instruction 3 or as previously indicated in his claim that beca......