State v. Smith

• Decision Date: 19 May 1903
• Citation: 174 Mo. 586,74 S.W. 624
• Parties: STATE v. SMITH.
• Court: Missouri Supreme Court

74 S.W. 624

174 Mo. 586

STATE v. SMITH.

Supreme Court of Missouri, Division No. 2.

May 19, 1903.

ROBBERY—INSTRUCTION—DEFINITION— OMISSION OF FELONIOUS INTENT.

1. In a prosecution for robbery, an instruction that if accused assaulted the prosecuting witness, "and from his person and against his will, by violence * * * or by putting him in fear, * * * did feloniously rob, steal, take, and carry away" certain property, he was guilty, is erroneous, for omitting the element of an intent to deprive the owner of his property without any honest claim thereto.

Appeal from Criminal Court, Buchanan County; B. J. Casteel, Judge.

Arthur Smith was convicted of robbery, and appeals. Reversed.

L. A. Michelson, Elliott Spaulding, and Jas. M. Wilson, for appellant. Edward C. Crow, Atty. Gen., for the State.

GANTT, P. J.

The defendant was indicted in the Buchanan county criminal court for robbery in the first degree, and convicted, and sentenced to the penitentiary for five years. He seeks a reversal of the judgment, and assigns as error the instruction numbered 2 in the bill of exceptions. The instruction is in these words: "The court instructs the jury that if they believe and find from the evidence that at the county of Buchanan and state of Missouri, and on or about the 20th day of September, 1900, the defendant, by himself or in company with another, assaulted William D. Boyer, and from his person and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person, did feloniously rob, steal, take, and carry away, of the property of said William D. Boyer, one gold watch, ten cents in lawful money of the United States, three pocketbooks, a railroad mileage book, one bunch of keys, one tape measure, one pair of scissors, one comb, or any of said property, of any value, you will find the defendant guilty of robbery in the first degree, and assess his punishment at imprisonment in the penitentiary for any term not less than five years." It was ruled in State v. O'Connor, 105 Mo. 121, 16 S. W. 510, that an instruction in all material respects like this failed to define robbery, in that it omitted the felonious intent of the taking, to wit, to deprive the owner of his property without any honest claim to it, and to deprive the owner of it, and to wrongfully convert it to the use of the robber. That ruling was subsequently indorsed and followed in State v. Woodward, 131 Mo. 369, 33 S. W. 14, and State v. McLain, 159...