State v. Smith

• Decision Date: 31 January 1894
• Citation: 24 S.W. 1000,119 Mo. 439
• Parties: STATE v. SMITH.
• Court: Missouri Supreme Court

24 S.W. 1000

119 Mo. 439

STATE v. SMITH.

Supreme Court of Missouri, Division No. 2.

January 31, 1894.

ROBBERY — ATTEMPT — INDICTMENT — INCURABLE DEFECT.

1. An indictment for attempt to commit robbery is defective, which alleges that defendant put R. "in fear of immediate injury," instead of "in fear of immediate injury to his person."

2. Such a defect in the indictment could not be cured by a charge which required the jury to find that the attempt was to take the property, against the will, by violence to the person, or by putting him in fear of some immediate injury "to his person."

Appeal from circuit court, St. Charles county; E. M. Hughes, Judge.

James Smith was convicted of an attempt to commit robbery, and appeals. Reversed.

R. C. Haenssler, for appellant. R. F. Walker, Atty. Gen., and Louis H. Brecker, Pros. Atty., for the State.

GANTT, P. J.

The indictment preferred by the grand jury against the appellant is as follows, to wit:

"State of Missouri, county of St. Charles — ss.: In the circuit court of St. Charles county, Missouri, March term, 1893.

"The grand jurors for the state of Missouri, duly impaneled, sworn, and charged to inquire into and for the body of said county of St. Charles and state of Missouri, upon their oaths present and charge: One James Smith, at said county of St. Charles, on the 17th day of February, 1893, unlawfully, willfully, and feloniously, did attempt to feloniously rob certain money, property, and valuable things of one H. A. Reed, with the intent to convert said money, property, or valuable things to his use. And then and there, in such attempt, and towards the commission of said robbery and felony, the said James Smith unlawfully, willfully, and feloniously took hold of H. A. Reed, and offered violence to his person, and by putting him, the said H. A. Reed, in fear of immediate injury, and demanded said H. A. Reed to hand over his money, or he, the said James Smith, would blow his, the said H. A. Reed's, head off; and the said James Smith, then and there, unlawfully and feloniously and forcibly, took hold of said H. A. Reed, unbuttoned his coat, and placed his hand in the pocket of said H. A. Reed, to rob and steal the money and property of the said H. A. Reed, and which the said H. A. Reed then and there had upon his person, and in his possession, and with a weapon, to the jurors unknown, then and there, unlawfully and feloniously, threatened and offered violence to said Reed, and with such weapon assaulted said H. A. Reed, with the full intent, unlawfully and feloniously, to rob said H. A. Reed, and carry out the felony aforesaid, but was intercepted and prevented from completing and carrying out said robbery and felony by the timely interference of one H. Otto Pickert, who requested and demanded the said James Smith, at the point of a pistol, to let the said H. A. Reed alone; and which demand and request so made by the said H. Otto Pickert had the effect, then and there, to prevent the said James Smith from completing and carrying out said robbery and felony, or to do violence to the person of said H. A. Reed. And the grand jurors aforesaid do say that the said James Smith, then and there, in the manner and form aforesaid, unlawfully, willfully, and feloniously, did attempt to feloniously rob the money and property of the said H. A. Reed, against the peace and dignity of the state. Louis H. Brecker, Prosecuting Attorney.

"And the grand jurors for the state of Missouri, duly impaneled, sworn, and charged to inquire within and for the body of said county of St. Charles and state of Missouri, upon their oaths present and charge that one James Smith, at said county of St. Charles on the 17th day of February, 1893, unlawfully, willfully, and feloniously, did attempt to rob one H. A. Reed of certain money and property being then and there in his possession, to wit, twenty dollars in money, and a watch of the value of fifty dollars, and in said attempt, and towards the commission of said felony and robbery, the said James Smith, then and there, willfully, unlawfully, and feloniously, did assault the said H. A. Reed with a deadly and dangerous weapon, to wit, a knife, and forcibly took hold of the said H. A. Reed, opened his coat, and commenced to search the said H. A. Reed for money and valuable things, with the intent then and there to rob the said H. A. Reed. But he, the said James Smith, did then and there fail in the perpetration of said robbery and felony aforesaid by one H. Otto Pickert, who then and there pointed a revolver at said James Smith, and commanded him to let the said H. A. Reed alone, and which demand so made by said Pickert, with pistol, had the effect, then and there, to prevent the said James Smith from completing and carrying out of said robbery and felony, or of so doing violence or injury to said H. A. Reed. And the grand jurors aforesaid do say that the said James Smith, then and there, in the manner and form aforesaid, unlawfully, willfully, and feloniously, did attempt to feloniously rob the money, property, and valuable things of said H. A. Reed, against the peace and dignity of the state."

The defendant moved to quash the indictment, which motion was overruled. He was duly arraigned, and pleaded not guilty; was tried, convicted, and sentenced to the penitentiary.

1. After he was convicted the defendant renewed his objections to the indictment in his motion in arrest, and, the court having overruled that motion, it is assigned here as error. The crime of robbery, in this state, is statutory, and is divided into three degrees. The line of demarkation between these degrees was settled in State v. Jenkins, 36 Mo. 372, and has been consistently maintained since that time. It was then said: "It is of the very essence of robbery in the first degree that the violence or fear of injury shall be present and immediate to the person, and that the property shall be actually taken from his person or in his presence,...