The State v. Holmes

• Decision Date: 23 May 1927
• Docket Number: 27373
• Citation: 295 S.W. 71,317 Mo. 9
• Parties: The State v. Albert Holmes, Appellant
• Court: Missouri Supreme Court

295 S.W. 71

317 Mo. 9

The State v. Albert Holmes, Appellant

No. 27373

Supreme Court of Missouri

May 23, 1927

Appeal from Jackson Circuit Court; Hon. Nelson E. Johnson Judge.

Reversed and remanded.

J Francis O'Sullivan and Isadore Rich for appellant; O. H. Stevens and Thomas J. Gill Jr., of counsel.

(1) Defendant's demurrer to the evidence should have been sustained and a verdict should have been directed for the defendant, because the uncontradicted evidence showed that the taking of the diamonds was accomplished without violence to the person of Mrs. Newell, and without putting her in fear of any immediate injury to her person, the taking preceding any force or intimidation. Sec. 3307, R. S. 1919; State v. Parker, 262 Mo. 169, 170 S.W. 1121, L. R. A. 1915C, 121; State v. Spivey, 204 S.W. 261; State v. Cantrell, 234 S.W. 802; Sutton v. State, 258 S.W. 634; Montsdoca v. State, 93 So. 159; Howard v. Comm., 248 S.W. 1060; Colby v. State, 46 Fla. 112, 110 Am. St. 87; Routt v. State, 61 Ark. 594; Harrison v. State, 43 Ohio St. 376; Brennon v. State, 25 Ind. 403; Dawson v. Comm., 74 S.W. 701; Jones v. Comm., 74 S.W. 263; Comm. v. Prewett, 84 Ky. 240; 4 Blackstone Com., p. 242; Stewart v. People, 224 Ill. 434; Burke v. People, 148 Ill. 70; Hall v. People, 171 Ill. 540. (2) The court erred in giving the instruction numbered one on robbery, that being the main instruction in the case, for the reason that there was no evidence upon which to base it. State v. Parker, 262 Mo. 178; L. R. A. 1915C, 121; Schroeder v. People, 196 Ill. 211; 24 Am. & Eng. Ency. Law (2 Ed.) 999; 1 McClain's Criminal Law, sec. 469; State v. Sommers, 12 Mo.App. 374; Kelley's Criminal Law, 629; Thomas v. State, 91 Ala. 34; People v. Stevens, 141 Cal. 488, 75 P. 62; 34 Cyc. 1799; Spencer v. State, 106 Ga. 692.

North T. Gentry, Attorney-General, and A. M. Meyer, Special Assistant Attorney-General, for respondent.

Under the evidence, the defendant was guilty of robbery. People v. Glynn, 54 Hun (N. Y.) 332, 7 N.Y.S. 555, 123 N.Y. 631; Clark v. State, 220 S.W. 100; James v. State, 53 Ala. 387; Hill v. State, 145 Ala. 60; 2 Bishop's New Cr. Law (9 Ed.) par. 1178; Tiller v. State, 32 Ohio Cir. Ct. Rpt. 704; McNeal v. State, 29 Ohio L. J. 185; Sec. 3307, R. S. 1919; Turner v. State, 1 Ohio St. 432; Note to Monaghan v. State, 46 L. R. A. (N. S.) 1149; Note to Jones v. Com., 57 L. R. A. 432; State v. Williams, 183 S.W. 308.

Blair, J. Walker, P. J., and White, J., dubitante. There being no opinion case is transferred to Court en Banc.

OPINION

BLAIR

Appellant was convicted of robbery in the first degree, was sentenced to a term of ten years in the penitentiary, and has appealed.

Appellant offered no testimony. Only three witnesses were offered by the State. The uncontradicted evidence is that in February, 1924, two men answered an advertisement of S. H. Newell and wife that they had diamonds for sale. These men came to the Newell home in Kansas City, and examined said diamonds in the presence of Newell and his wife. For reasons not now important, they did not buy. About a week later, one of the men, sufficiently, but somewhat unsatisfactorily, identified as appellant, returned to the Newell home and asked to see the diamonds again with a view to buying them. He was admitted to the home by Mrs. Newell. Her husband was absent.

After some further examination of the diamonds, appellant asked Mrs. Newell to get him a glass of water so that he could see how they looked when placed in the water. Leaving the diamonds in appellant's hands, Mrs. Newell went to the kitchen. Appellant followed her and, drawing a revolver on her, drove her with her baby into the basement and locked the door. She was unable to get out until he had made his escape, taking the diamonds with him. The value of the diamonds aggregated about $ 400.

The foregoing sufficiently outlines the facts to understand the one question in the case which we will consider. That question is: Do the facts outlined constitute the crime of robbery? We have concluded that they do not. The evidence affirmatively shows that the taking of the diamonds was accomplished without violence to the person of Mrs. Newell and without putting her in fear of immediate injury to her person. The taking occurred before Mrs. Newell was put in fear.

The point has been sufficiently raised by the motion in arrest, under the assignments that the information charged one crime and the proof tended to establish a different crime and that the judgment against appellant is illegal and unwarranted, either by the law or the evidence in this case. The same point is also raised by the assignment in the motion for new trial that the court erred in giving all of the instructions.

The information was drawn under Section 3307, Revised Statutes 1919. Under that section the taking of the property must be not only against the will of the owner, but also must be accomplished either by violence to his person or by putting him in fear of some immediate injury to his person. There could not possibly be any contention that the taking was accomplished by violence to the person in this case. The putting in fear occurred after the physical taking of the property by appellant.

In Kelley's Criminal Law and Practice (3 Ed.) sec. 631, it is said: "The fear must in all cases precede the taking; for, if a man privately steal money or property from the person of another, and afterward keep it by putting him in fear, this is no robbery, but larceny only."

In 34 Cyc, 1799, it is said: "It is further essential in the perpetration of this offense that the taking be accomplished by violence or by putting in fear. . . . The violence or intimidation in robbery must precede or be contemporaneous with the taking of the property."

We quote from Volume 2, Archbold's Criminal Practice and Pleading (Waterman's Notes), page 508, as follows:

"It may also be observed, with respect to the taking, that it must not, as it should seem, precede the violence or putting in fear; or, rather, that a subsequent violence or putting in fear will not make a precedent taking, effected clandestinely, or without either violence or putting in fear, amount to robbery. Thus, where a thief clandetinely stole a purse, and, on its being discovered in his possession, denounced vengeance against the party if he should dare to speak of it, and then rode away, it was holden to be simple larceny only, and not robbery, as the words of menace were used after the taking of the purse. [Harman's case, 1 Hale, 534.] But if the purse had been obtained by means of the menace, the offense would have amounted to robbery. By Lord Mansfield, in Donally's case, 2 East P. C., c. 16, sec. 130, p. 726."

In Bishop on Criminal Law (9 Ed.) sec. 1175, it is said: "The fear of physical ill must come before the relinquishment of the thing to the thief, not after; else the taking is not robbery."

A case very similar in its facts to the case at bar is Thomas v. State, 91 Ala. 34. We quote from the syllabus, which accurately states the substance of the facts and the rule announced in the opinion, as follows: "A conviction cannot be had for robbery, on evidence showing that the defendant obtained the possession of the property by fraud or artifice, and retained it by force or threats of violence; as when, meeting a youth with a gun in his hand, he asked to examine it with a view to purchasing it, and the gun being handed to him, with the remark that it was loaded, he pointed it at the owner, threatened to shoot if he did not run, and himself ran away with the gun when the owner had backed off some distance."

In Dawson v. Commonwealth, 74 S.W. 701, the syllabus, fully supported by the opinion, reads as follows: "One who stealthily placed her hand in the pocket of another, and took therefrom, without using any force or violence, a sum of money, was guilty of larceny merely, though after the taking, while the owner made an effort to regain his property, she drew a pistol, and threatened violence."

In Routt v. State, 61 Ark. 594, it is said: "One who snatches money from another's hand, without using force or putting in fear, and subsequently uses a pistol to prevent the owner from regaining possession, is not guilty of robbery" -- Syllabus. See also Clary v. State, 33 Ark. 561, l. c. 563.

We have found no Missouri cases directly in point on the facts. Neither have we found any which lay down a contrary rule. State v. Sommers, 12 Mo.App. 374, was a case where defendant attempted to snatch a woman's purse containing $ 450 in money. The court directed the jury to acquit of grand larceny and instructed the jury upon felonious attempt to steal. Appellant contended that there should have been an instruction on an attempt to rob. In overruling this contention, Bakewell, J., said: "We are of opinion moreover, that there was evidence from which the jury might fairly find an attempt to steal as distinguished from an attempt to rob. To constitute robbery the party must be put in fear or there must be violence. It may be difficult to determine what degree of violence is necessary to constitute the offense. Where a man walking after a woman in the street, snatches her shawl from her person, though he uses considerable violence, it is said...