State v. Will
| Decision Date | 31 May 1897 |
| Docket Number | 12,497 |
| Citation | 22 So. 378,49 La.Ann. 1337 |
| Court | Louisiana Supreme Court |
| Parties | STATE OF LOUISIANA v. WILL, ALIAS CHARLES, JACKSON AND FRANK REESE |
Submitted May 1, 1897
Rehearing Refused June 30, 1897.
APPEAL from the Eighteenth Judicial District Court for the Parish of Lafourche. Caillouet, J.
M. J Cunningham, Attorney General, L. C. Moise, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.
Howell & Martin, for Defendants, Appellants.
An information was filed against the accused jointly charging them with robbery. They were arraigned on this charge pleaded not guilty, were tried and convicted of larceny.
A sentence of one year's imprisonment at hard labor followed the verdict, from which this appeal is taken.
The first ground relied upon for reversal of the judgment is the following:
Error patent on the face of the record is this: That the verdict of the jury is not responsive to the information, the accused not being charged with the crime of larceny and in the manner and form required by law.
We do not think there is force in this objection. The charge laid in the information was robbery. It is fully and sufficiently set forth. The definition of robbery is larceny committed by violence from the person of one put in fear. Bishop, Vol. 2, Sec. 1156, 6th Ed. One of the lesser offences embraced in this charge is larceny. If the facts of the case, as disclosed by the evidence, justified it, it became the duty of the trial judge to charge the jury that one of the verdicts they might return was larceny. Bishop, Vol. 2, Sec. 1159. It is not essential to set out specifically in an information all the minor offences included within the scope of the greater charge. If the phraseology of the indictment be sufficient to support a conviction on the greater charge, it, too, suffices to support a conviction for a crime of lesser magnitude but of the same generic class. State vs. Ford, 30 An. 313; State vs. Stouderman, 6 An. 289; State vs. McCort, 23 An. 326; State vs. Delaney, 28 An. 434; State vs. Gilkie, 35 An. 53; Bishop on Crim. Law, Vol. 2, Sec. 1159 et seq., 6th Ed.; Bishop's New Crim. Law, Sec. 1055.
The second ground relied upon by the accused is this:
That the trial judge charged the jury as follows: "I charge you that when the property is taken with the consent of the owner, then there is no larceny, unless the consent was obtained by fraud practised by the accused with a view to obtain the property with intent to steal it, and that fraud so practised was the primary motive which moved the owner to consent."
To this charge a bill of exception was taken. The bill does not set forth wherein the clause of the charge objected to is erroneous, nor does it state it is erroneous or even prejudicial to the accused, and it does not appear that any different or additional charge was requested.
The judge's charge to the jury, as a whole, is not before us. The sentence quoted above is the only part that comes up with the bill of exceptions. But in the bill the judge tells us that the clause of the charge excepted to formed part of a general charge, in which the court instructed the jury fully as to the crime of robbery and its constituent elements -- that upon an indictment for robbery the jury could find a verdict of guilty of larceny when the facts failed to show robbery but established a case of larceny; and that the jury were then instructed as to the crime of larceny and its constituent elements -- the instruction on the subject of larceny concluding with the clause excepted to. Then premising with the statement that he deems it fair to the accused to put the appellate court in...
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