Under a charge of robbery alleged to have been committed in Dixon county, July 6, 1909, Edward Bunge, defendant, was found guilty of stealing from the person of Adolf Hennig, without putting him in fear, prоperty of the value of $8.10. The stolen property consisted of a pocketbook and $8 in money. The sentence imposed by the district court was a term of three years in the penitentiary. By petition in error defendant now presents for review the record of his conviction.
The substance of the first assignment, if correctly undеrstood, is that the trial court erred in permitting the examining magistrate to correct the transcript of his proceedings by changing the spelling of the ñame of the cоmplaining witness from “Adolph Hennig” to “Adolf Hennig.” The identity of the complaining witness was established by the proofs beyond any question. He accused defendant of the robbery in thе presence of witnesses before they separated the morning the offense was committed. The preliminary examination shows that defendant knew who accused him of the robbery. The given or Christian names, Adolph and Adolf are idem sonans, and the change in the transcript was clearly immaterial. In any event the record shows conclusively that defendant was in nowise prejudiced by the correction.
It is next argued that the trial court erred to the prejudice of defendant in instructing the jury as follows: “The evidеnce in this case is insufficient to sustain a verdict finding the defendant guilty of forcibly and. by violence or by putting in fear the said Adolf Hennig, and taking any money or personal property from the said Adolf
In criticising this instruction defendant asserts it practically directs the jury to find Mm guilty of larceny, and he argues it was the duty of the trial court to instruct them, on the lаw of robbery, there having been no direction on that subject. The rulings of the trial court are not open to defendant’s criticism. The charge of robbery included the lesser offense of larceny from the person. Under an information charging robbery, accused may be convicted of stealing property from the person. Brown v. State,
Another instruction assailed as erroneous reads as follows : “If you find from the evidence, beyond a reasonable
When .the offense was committed, Ed Maughan was present. He was also charged with the robbery, bnt defendant was separately tried. The complaining witness testified to having been assaulted by Maughan. Five other persons were present at the time, and in view of these facts it seems to be the contention of defendant that the instruction in some way authorized the jury to hold him accountable for the doings of others. “If a crime was committed,” says the brief, the giving of the instruction “narrows the evidence down to the defendant alone and takes from the jnry any other consideration of the evidence.” The question for the determination of the jury was the guilt or innocence of defendant. They were not permitted to convict him unless the evidence of his own-acts satisfied them beyond a reasonable doubt that he was guilty. If the crime was committed by some one else, and not by defendant, the instructions as a whole required a verdict of not guilty. The instruction is not challenged on any meritorious ground.
A reversal is also sought on account of the insufficiency of the evidence to sustain the verdict, but a careful examination of all the proоfs has failed to disclose a reason for interfering with the conviction on this ground. Hennig, the complaining witness, was a German 27 years old. For four months prior to the coihmissiоn of the offense charged he lived at Concord, Dixon county, and during that time was there engaged with a partner in the livery business.
A careful consideration of the entire record leads to the conclusion that the sentence of three years is excessive and that a sentence of one year will meet the demands of justice. The sentence is therefore shortened to one year, and as thus reduced the judgment is
Affirmed.