The State v. Weinhardt

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

161 S.W. 1151

253 Mo. 629

THE STATE v. ANDREW WEINHARDT, Appellant

Supreme Court of Missouri

December 24, 1913

Appeal from St. Louis City Circuit Court. -- Hon. Leo S. Rassieur Judge.

Reversed and remanded.

Zachritz & Zachritz for appellant.

(1) Robbery in the first degree, under our statutes and decisions, involves an intentional putting in fear, or the use of violence by the defendant. State v. Sommers, 12 Mo.App. 375; State v. Smith, 119 Mo. 439; State v. Jenkins, 36 Mo. 372; State v Howerton, 59 Mo. 91. (2) Where there is evidence of any witness tending to establish the commission of an offense included in the one embraced in the information, but of a lesser degree, it is the duty of the court to instruct the jury upon such lower grade of offense. Secs. 4904, 5231, R.S 1909; State v. Doyle, 107 Mo. 42; State v. Harris, 209 Mo. 440; State v. Grant, 144 Mo. 67; State v. Williams, 186 Mo. 128; State v. Richardson, 194 Mo. 326; State v. Hoag, 232 Mo. 316; State v. Austin, 183 Mo. 479; State v. Scott, 172 Mo. 545. (3) It is the duty of the court, whether requested or not, to instruct the jury in writing upon all questions of law, arising in the case, which are necessary for their information in giving their verdict, and a failure so to do is good cause for setting aside the verdict, in the event of a conviction, and granting a new trial. Secs. 5231, 5284, R.S. 1909, and cases cited above.

John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.

(1) Before the jury could convict the defendants, or either of them, they were required by the court in instruction numbered 2 to find that they, or either of them, had: (a) Assaulted Mrs. Koebbe, (b) and by violence to her person, (c) and by putting her in fear, (d) unlawfully and fraudulently, (e) in her presence, (f) and against her will, (g) did take $ 20, (h) to convert to their own use, (i) and said money belonged to Mrs. Koebbe, and if the jury did not so find the facts to be they should acquit. This instruction was proper. State v. Cantlin, 118 Mo. 108; State v. McLain, 159 Mo. 340; State v. James, 216 Mo. 394. (2) The court was specifically requested to instruct on petit larceny, and on refusal to do so, defendant saved his exception. Defendant's testimony made a case of petit larceny against himself. The jury were told by the court, in instruction numbered 2, that unless they believed from the evidence that the money taken from the possession of Mrs. Koebbe was taken in her presence and an assault was made on her, and by violence to her person, or by putting her in fear of some immediate injury to her person, they should acquit the defendant. In other words, the jury were told by the court in this instruction that if the money taken by defendant from the cash register in the Koebbe saloon was taken in the manner described by defendant in his testimony, then they should acquit him, although his testimony was a confession of the crime of petit larceny. The jury were told that if defendant was only guilty of petit larceny, he should be acquitted. We admit that the crime of petit larceny is included in a charge of robbery, and we also assert that had defendant been acquitted of the charge of robbery, he could not afterwards be convicted of petit larceny. State v. Anderson, 186 Mo. 25. Defendant's rights were not jeopardized by the refusal of the court to instruct the jury on petit larceny. There are a few decisions of this court that intimate as much, but we have been unable to find a case in this State squarely holding that it was error to refuse such an instruction on a charge of robbery. These cases are: State v. Coffee, 158 Mo. 568; State v. Whalen, 148 Mo. 286; State v. Brown, 104 Mo. 365. But in each of these cases the court said that the evidence of the defendants and their witnesses disclosed innocence on their part, if true, and it was therefore not error to refuse to instruct on petit larceny. In the case at bar, the jury in effect were told by the court, in instruction numbered 2, that if they believed the testimony of the defendant, that is, that he took the money out of the cash register in Koebbe's saloon in the presence of Mrs. Koebbe, without force or violence to the person of Mrs. Koebbe and without putting her in fear of immediate injury to her person, and without threatening her in any way, they should acquit him. The giving of instruction numbered 2 was most clearly and decidedly in defendant's favor, in view of his own testimony. If the jury believed his testimony, they were told to acquit him, and if they did not believe his testimony, they were to find him guilty of robbery in the first degree, and the jury having found him guilty of robbery in the first degree is conclusive that they disbelieved his testimony and believed the testimony of Mrs. Koebbe. Clearly, under this instruction, the failure of the court to instruct on petit larceny was not an error prejudicial to defendant, but in his favor, because if the jury believed his testimony we would be discharged forever from the offense of taking this money from the cash register in Koebbe's saloon. Sec. 5115, R.S. 1909.

BROWN J. Walker, J., dissents in separate opinion filed.

OPINION

In Banc.

BROWN, J.

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, Revised Statutes 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 twenty dollars 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 you 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 hollow? 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 hollow? 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 you 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."

I. When this case was heard in Division Two 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...