The State v. Smith

• Decision Date: 31 January 1894
• Parties: The State v. Smith, Appellant
• Court: Missouri Supreme Court

24 S.W. 1000

119 Mo. 439

The State v. Smith, Appellant

Supreme Court of Missouri, Second Division

January 31, 1894

Appeal from St. Charles Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed.

R. C Haeussler for appellant.

(1) In indictments, words and phrases shall be construed according to the common and approved usage of the language. Heard's Criminal Pleading, p. 39; also pp. 165, and following; 10 Am. and Eng. Encyclopedia of Law, p. 461. (2) Each count in an indictment ought to charge one single crime. Heard's Criminal Pleading, p. 103. (3) The indictment must charge the offense in the particular words of the statute creating such offense, and general terms, unaccompanied by the particular terms and words of the statute, are insufficient to properly charge the commission of an offense. Wharton on Criminal Law [2 Ed.], p. 136. (4) The statement or body of the indictment must set forth all the ingredients of the offense. Kelley on Criminal Law [2 Ed.], sec. 175 and sec. 1092; Heard's Criminal Pleadings, pp. 162-168; Wharton on Criminal Law [2 Ed.], pp. 133, 135; State v. Helm, 6 Mo. 263; State v. Rose, 25 Mo. 426; State v. Evers, 49 Mo. 542; State v. Terry, 109 Mo. 601; State v. Green, 111 Mo. 585. (5) In indictments charging assault with intent to commit a felony, the intent must be alleged to have been felonious. State v. Clayton, 100 Mo. 516; State v. Brown, 104 Mo. 365. (6) The proofs produced by the state on the trial of a criminal case must correspond with the averments of the indictment in all material points. 10 Am. and Eng. Encyclopedia of Law, pp 556-559. (7) In criminal cases, the court must instruct correctly upon all material questions and points involved in the determination of the case. R. S. 1889, sec. 4208; Kelley on Criminal Law [2 Ed.], sec. 390; State v. Palmer, 88 Mo. 568; State v. Sharp, 106 Mo. 106. (8) When the defendant testifies in a criminal case, instructions hypothecated upon his evidence should be given. State v Talmage, 107 Mo. 543; State v. Partlow, 90 Mo. 608; Nalley v. State, 30 Tex.App. 456; Kelley on Criminal Law [2 Ed.], sec. 392.

R. F. Walker, Attorney General, and L. H. Brecker, for the state.

(1) The indictment is sufficient, and clearly charges the offense of which the defendant was convicted. It was unnecessary to allege that the attempted robbery was against the will of said Reed. State v. Tissing, 74 Mo. 72; State v. Anderson, 81 Mo. 78. (2) Words of equivalent importance are sufficient when exact words of statute are not used. State v. Ware, 62 Mo. 597; State v. Watson, 65 Mo. 115. (3) The instructions were correct and liberal to defendant. (4) This court has held that when there are several counts charging the same offense, one good count will sustain a general verdict of guilty. State v. Blan, 69 Mo. 317; State v. Testerman, 68 Mo. 708.

OPINION

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 seventeenth 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 with 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. Breker, 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 seventeenth 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, $ 20 in money, and a watch of the value of $ 50. 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.

I. 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 demarcation 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 and against his will; but in the second degree, the property is supposed to be delivered, or suffered to be taken, through fear that a threatened injury may be inflicted at some different time, either to his own person or property, or to the person of any relative or member of his family." See also sections 3530, 3531, Revised Statutes, 1889.

So distinct are the two grades, that it was held that upon an indictment for robbery in the first degree, a conviction could not be had for the second or third degree. State v. Davidson, 38 Mo. 374; State v. Farrar, 38 Mo. 457; State v. Brannon, 53 Mo. 244.

It is evident that the indictment in this case is an attempt, at least, to charge the defendant under section 3940, Revised Statutes, 1889, which provides for the punishment of an attempt to commit an offense. The language of the statute is: "Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof, shall, in cases where no provision is made by law for the punishment of such attempt, be punished as follows," etc. The punishment affixed is referable entirely to the punishment prescribed for the particular offense attempted.

It...