State v. Weinhardt

• Decision Date: 24 December 1913
• Citation: 253 Mo. 629,161 S.W. 1151
• Parties: STATE v. WEINHARDT.
• Court: Missouri Supreme Court

161 S.W. 1151

253 Mo. 629

STATE v. WEINHARDT.

Supreme Court of Missouri.

December 24, 1913.

1. ROBBERY (§ 27)—INCLUDING OFFENSES.

The crime of robbery includes all the elements of larceny, with the added acts of violence or putting in fear, so that in a prosecution for robbery, if there is substantial evidence that the taking was without assault or putting in fear, defendant is entitled to submission of the offense of larceny.

2. ROBBERY (§ 27)—INCLUDING OFFENSES— PETIT LARCENY.

Where accused was charged with first degree robbery in that he entered a saloon and by seizing and choking the saloon keeper's wife forced her to permit him to take $20 from the cash register, which he carried and converted to his own use, and he testified that after ordering beer he passed behind the bar, opened the cash register, and removed the money, but did not choke or threaten to choke the saloon keeper's wife, who was in charge of the saloon, and

did nothing to put her in fear, it was error for the court to refuse to charge on petit larceny.

Walker, J., dissenting.

In Banc. Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Andrew Weinhardt was convicted of robbery in the first degree, and he appeals. Reversed.

Defendant appeals from a judgment of the circuit court of St. Louis city sentencing him to serve five years in the penitentiary for the alleged crime of robbery in the first degree, as denounced by section 4530, R. S. 1909. The evidence on the part of the state strongly tended to prove that defendant entered a saloon kept by one Koebbe, and by seizing and choking Koebbe's wife, who was temporarily in charge of said saloon, forced her to permit him to take about $20 from the cash register which he carried away and converted to his own use. It is unnecessary to incumber this opinion with the detailed evidence on the part of the state—it amply supports the verdict and judgment. The only error assigned upon which defendant seriously insists for reversal is the failure of the trial court to instruct the jury on the crime of petit larceny. Defendant's learned counsel assert that the defendant's evidence tends to prove that he did not use any violence towards Mrs. Koebbe, and did not place her in fear of immediate injury to her person while he was taking the money, and therefore the court should have given his requested instruction on petit larceny.

That part of defendant's testimony which it is contended presents the issue of petit larceny is as follows: "Q. Did you drink any beer in the saloon, Andreas? A. I asked for a glass of beer. Q. Was it served? Did you get it? A. Yes, sir. Q. Now, tell the jury what happened, in your own way, as near as your remember it. A. Mrs. Koebbe was standing behind the bar, and we was making fun there, talking like that, and I walked behind the bar and rang the cash register and took the money out, and she says I should don't hurt her. Q. Speak louder. A. She told me that I should don't hurt her, and I says, `No, I ain't going to do nothing,' and I walked right outside. That is all I know about it. Q. Did you take the money? A. Yes, sir. Q. That is all you know about it? A. Yes, sir. Q. Now, Andreas, I will ask you did you grab her by the throat, or put your hands on her, or threaten to kill her, or anything like that? A. No, sir; not a word like that. She was excited and nervous, and she was standing there talking. Q. But you did take the money, did you? A. Yes, sir. Q. Then when you got the money what did you do? A. I walked out. * * * Q. And you told her that you wasn't going to kill her if she didn't holler? A. No, sir; I just told her I wouldn't hurt her. Q. You did tell her that you would not hurt her if she did not holler? A. No, sir. Q. What did you say to her? A. I just said to her, `I ain't going to hurt you.' She said: `Don't hurt me; take all you want.' Q. And just before you went behind there you ordered a glass of beer and she set that on the counter? A. Yes, sir. Q. And instead of taking the beer, that is when you ran behind her? A. No, sir; she took the nickel and went to put it in the register, and I walked back there. Q. You tell this jury you did not touch her at all? A. Yes, sir. Q. And had not threatened to kill her? A. No, sir. * * * Q. I will ask you whether you told this officer, Sergeant Hussey, or any other of these officers, that you had gotten Mrs. Koebbe by the throat, or threatened to kill her? Did you tell them anything like that? A. No, sir. Q. Did anything like that happen, as near as you can remember? A. No, sir. * * * Mr. Shaner: You say then, if I understand your correctly, that you know everything that you did on the inside of that saloon, but you are not sure of everything you did on the outside; is that correct? Answer that yes or no. Judge Zachritz: I object to that. He hasn't stated that. A. I know I didn't do much on the inside, just took that money and walked out; that is all I done. * * * Q. If you were drunk and don't know what you did, you don't know but what you put your hands on this woman there, as she says you did, do you? A. I know I didn't do that. Q. You didn't touch that old woman in there? A. No, sir. Q. That is correct? A. Yes, sir."

Zachritz & Zachritz, of St. Louis, for appellant. John T. Barker, Atty. Gen., and W. T. Rutherford, Asst. Atty. Gen., for the State.

BROWN, J. I.

I. When this case was heard in division 2 of this court, the writer was of the opinion that defendant's own evidence amounted to an admission that at the time he took the money from the cash register he placed Mrs. Koebbe in fear of immediate injury to her person, and therefore I favored the affirmance of the judgment appealed from. But upon a reargument of the case in banc, and a re-examination of the evidence, I am convinced that the testimony of defendant did warrant an instruction on the crime of petit larceny.

The crime of robbery in the first degree includes all the elements of larceny, with the added acts of violence or putting in fear, etc., so that, under section 4904, R. S. 1909, if there was substantial evidence that in taking the money from Koebbe's cash register the defendant did not assault Mrs. Koebbe nor place her in fear of immediate injury to her person, then it became the duty of the trial court to instruct the jury that it might find defendant guilty of petit larceny, provided it believed that he took stole, and carried away the money from Koebbe's cash register, and that he was not guilty of robbery as that crime was defined in the instructions. Though Mrs. Koebbe may have been scared, that fact alone does not convert defendant's acts in taking the money into the crime of robbery, unless he intentionally did or said something which placed her in fear of immediate injury to her person.

However improbable the testimony of defendant may have been, the court could not refuse to submit it to the jury. By refusing and failing to give any instruction on the crime of petit larceny the court arbitrarily refused to allow the jury to consider defendant's evidence, and thereby committed reversible error. State v. Richardson, 194 Mo. 326, 92 S. W. 649; State v. McBroom, 238 Mo. 495, 141 S. W. 1120; State v. Hoag, 232 Mo. 308, loc. cit. 316, 134 S. W. 509; and State v. Bidstrup, 237 Mo. 273, loc. cit. 286, 140 S. W. 904.

Other alleged errors are assigned by defendant, but, if errors at all, they are not likely to re-occur upon another trial of this cause; therefore we have not considered them.

For the error of the circuit court in failing to submit to the jury the issue of petit larceny as presented by defendant's evidence, its judgment must be reversed, and the cause remanded for a new trial. It is so ordered. All concur, except WALKER, J., who dissents in separate opinion filed.

WALKER, J.

I. I do not concur in the majority opinion in its holding that an instruction for petit larceny was authorized upon the testimony of appellant; upon this testimony he was, if not guilty of robbery, entitled to an acquittal. He denies the assault, and as confirmatory of his testimony that he did not put the woman, who was in possession of the money, in fear of immediate injury, he says, "I told her I wouldn't hurt her," to which she replied: "Don't hurt me; take all you want." In the absence of an assault or putting in fear, one or the other necessarily essential to the crime, there can be no robbery, and, if the owner of the property under these circumstances consented to the taking...