delivered the opinion of the court.
Lawrence Gilbert Funk, Theodore Plvmell, Gregory Ceretto and Clayton Mullenax were jointly tried and convicted of the crime of aggravated robbery and sentencеd to a term in the penitentiary. They prosecute this writ and assign errors, of which one only need be considered. The charging part of the information is: “ * * * in and upon J. T. Dаvis, did make an assault and one yellow gold Elgin watch of the value of fifteen dollars, one rolled gold watch chain of the value of five dollars, seven dollars in mоney of the value of seven dollars, of the personal property of J. T. Dаvis from the person and against the will of the said J. T. Davis then and there feloniously and violently, and by force and intimidation did rob, seize, steal, take and carry away; and that the said Lawrence Gilbert Funk, # * * when they so robbed the said J. T. Davis as aforesaid werе then and there armed with a dangerous weapon, to-wit, guns with intention, if resisted, to maim and kill the said J. T. Davis; * *
The information charged the crime of aggravated robbery. Under this сharge, the jury must first determine1 from the evidence whether or not a robbery had beеn committed, and if so, whether or not, in its commission, defendants were armed with dangerous weapons, with intent, if resisted, to kill, maim or wound J. T. Davis; and if defendants were so armed аnd had such an intent, it was the duty of the jury to find them guilty of aggravated robbery. The fact of defendants being armed with a dangerous weapon, and possessing the in *169 tent mentioned, was not the essence of the offense of robbery, and the proof of these two facts was not necessary for a conviction of the offense of robbery, but these facts go to the degree of the crime, and affect only thе punishment to be suffered in event of a conviction.
Counsel for defendants called each of them as witnesses; they readily admitted the robbery of J. T. Davis and of mаny other persons; each of two of the defendants was sixteen years of аge; one seventeen years, and the other eighteen years of age; thеy each testified that the guns used in the robberies were unloaded, and when one оf the defendants was asked: “Did you ever intend to kill or maim anyone if you were resistеd in any of these robberies?” he answered:'“No, sir.” Thereupon, an objection by the district attorney was interposed and sustained. Where intent is of the essence of the crime, as here, a defendant has the right to testify specifically as to his intention in the commission of the acts which, it is claimed, constituted the crime.
Bershenyi v. People,
At the conclusion of the trial, defendants tendered and the court refused their proposed instruction No. 1, reading as follows: “The Court instructs the jury that there are 3 verdicts that may be rendered in this case, to-wit: 1. Guilty as charged. 2. Guilty of simple robbery. 3. Not guilty.”
There was evidence before the jury that tended to negative the specific intent necessary to make the crime for which defendants were tried one of aggravated rоbbery, and therefox*e axx ixxstructioxx upon the questioxx of simple robbery was warrаxxted axxd should have been givexx. It was error for the trial court to refuse to instruct thе jury upon the question of robbery and to submit to it, for its consideration and use, an aрpropriate form of verdict to
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be returned by it in event it determined, under tbe evidence, that defendants were guilty of robbery rather than aggravated robbery. This was defendants’ theory of the
case;
there was evidence to support it, and the question was for the jury’s determination.
Crawford v. People,
If the legislature had deemed it advisable to do so, it might well have left the element of intent out of the statute defining aggravated robbery, but having failed to do so, intent became a necessary element in the proof of this offense, and it is our plain duty to give the statute its full force and effect.
It is not necessary for us to discuss and determine other interesting questions presented herein.
The judgment is reversed, and the cause remanded with instructions to the trial court to proceed in harmony herewith.