State v. Smith

• Court: Kansas Supreme Court
• Writing for the Court: JOHNSTON, C. J.:
• Citation: State v. Smith, 113 Kan. 737, 216 P. 302 (Kan. 1923)
• Decision Date: 09 June 1923
• Docket Number: 24,700
• Parties: THE STATE OF KANSAS, Appellee, v. JIM SMITH, Appellant

216 P. 302

113 Kan. 737

THE STATE OF KANSAS, Appellee, v. JIM SMITH, Appellant

No. 24,700

Supreme Court of Kansas

June 9, 1923

Decided January, 1923.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--How Robbery May Be Committed. A robbery may be committed either by feloniously taking property from the person of another against his will, by violence to his person, or by putting him in fear of some immediate injury to his person.

2. SAME. The pointing of a revolver at a person and the taking of her property near by without violence, or the taking of it immediately from her person, but against her will and while she was in fear of immediate injury to her person, is sufficient to constitute a robbery.

3. SAME--No Substantial Variance Between Information and Evidence. The information and evidence examined, and it is held that there was no substantial variance between them.

4. SAME--Evidence of Similar Felony Committed at the Same Time Admissible. Evidence of the felonious taking of property from the companion of the one robbed at the time the robbery in prosecution was committed, and where both acts were so intimately connected that one could not well be shown without proving the other, was not improperly admitted.

5. SAME. In some cases, evidence of other crimes of a similar nature committed under similar circumstances, about the same time, and which tend to prove the guilt of the accused of the crime charged, is admissible.

6. SAME--Objection to Rulings of Trial Court Without Merit. Certain objections to rulings on the admission of evidence and to the instructions are held to be without merit.

7. SAME--Pronouncing of Sentence. The record of the case is held to show that before sentence was pronounced by the court the defendant was informed of the verdict rendered and was asked whether he had any legal cause to show why judgment should not be pronounced against him.

J. W. Ward, and Dempster O. Potts, both of Wichita, for the appellant.

Charles B. Griffith, attorney-general, W. A. Blake, county attorney, Harry C. Castor, and John W. Wood, deputy county attorneys, for the appellee.

OPINION

JOHNSTON, C. J.:

Jim Smith was convicted of robbery in the first degree, and appeals.

He assigns as error the overruling of his demurrer to the evidence of the state and of his motion to discharge the defendant. The contention is that the testimony showed that Marie Huff, alleged to have been held up and robbed, was not searched or touched and that no property was taken from her person, whereas the information charged that defendant searched her clothing and committed robbery upon her person. The charge, in substance, was that defendant feloniously pointed a revolver at Marie Huff, demanded that she throw up her hands, and then searched her clothing, and by putting her in fear of immediate danger to her person, with the intent to rob her, took and carried away certain personal property of hers which was described. There was testimony to the effect that while she and Mr. Baron, her companion, were riding in an automobile they were followed for a time by the defendant and another traveling in an automobile, and that they drove into a position so as to block the way of the former. Then the defendant ordered Baron and Marie Huff to get out of their car, pointed a revolver at them, and thereupon the defendant searched Baron and took pocket books, watch and other property from him, as well as the purse of Marie Huff and the money which was in it, together with a vanity box. It does not appear that a search of the clothing of Marie Huff was made nor that the property was taken immediately from her person. Some of the evidence tended to show her property was taken from Baron. It was not necessary to a conviction to show violence to her person or the taking of the property directly from her person. A robbery may be committed without a search of the clothing or an assault upon the person of the victim. If in her fright she had dropped her purse and the defendant had taken it from the ground, it would have constituted robbery. It is enough if the property is taken in her presence and against her will, either by violence or putting her in fear of some immediate injury to her person. The statute provides that:

"Every person who shall be convicted of feloniously taking the property of another from his person or in his presence, and against his will, by violence to his person or by putting him in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree." (Gen. Stat. 1915, § 3443.)

Here the offense was shown to have been committed in the...