McEntee v. State

24 Wis. 43 | Wis. | 1869

Cole, J.

There being no bill of exceptions in this case, we can only consider such alleged errors as may appear upon the record. Among other objections taken to the proceedings upon the trial, is the one that the verdict is contrary to the instructions of the court. But, for the reason first given, it is obvious that these instructions are not before us.

It was claimed upon the argument, that the indictment was so defective that it would not sustain a conviction for any offense. This objection, however, was not seriously insisted upon. The indictment is undoubtedly rather inartistically drawn. It is said that the allegation in respect to the violence and putting in fear is so ambiguous that it would apply as well to the putting the defendant in fear as to fear excited on the part of Coleman, from whom the property was taken. But we think the indictment charges with sufficient clearness and certainty the felonious taking of the property from the person of Coleman, against Ms will, by violence or by putting him in fear.

Another objection is, that the property taken is not described with sufficient certainty. But it seems to be well settled that no greater particularity is necessary in describing the property in an indictment for robbery than in a prosecution for larceny. That the description of the property would be sufficient in an indictment for the latter offense, see Terry Feb 1869 State, 13 Ind. 70; Commonwealth v. Sawtelle, 11 Cush. 142; Eastman v. Commonwealth, 4 Gray, 416; Commonwealth v. Stebbins, 8 id. 492; Hamblett v. The State, 18 N. H. 384, and the authorities there cited.

Again, it is objected that the verdict is such an one that it will not support a judgment for any offense whatever. The indictment charged robbery by feloniously taking the property therein described from the person of Coleman, by violence, or by putting him in fear. The jury found the defendant guilty of larceny, and further found the value of the property to be twenty-two dollars and seventy-five cents, consisting, etc., “takenfrom the person of Peter Coleman.” It is argued, by the Assistant Attorney-General, that, while the verdict is inartificial, the jury evidently intended to find, and did find, the defendant guilty of stealing from the person of Coleman the United States treasury notes, and national bank bills, and wallet, described in the indictment. The verdict will, doubtless, admit of this construction, without doing violence to tire language employed; but, still, it is .not entirely clear that the jury found the defendant guilty of stealing the property from the person of Coleman. They certainly found the defendant guilty of larceny, and then proceeded to describe the property stolen, and its value. And the last clause of the verdict, “taken,” etc., might have been intended as a still further description of the property stolen, and not that it was taken by the defendant from the person of Coleman. The verdict is what is termed in the hooks a partial one; the jury manifestly acquitting the defendant of the charge of robbery ; and they may also have intended to acquit him of the inferior charge of stealing from the person. And in view of this uncertainty as to the real meaning of the verdict, and the doubt as to whether the jury intended to find the defendant guilty of stealing the property from the person of Coleman, we think it should only be held good for larceny, to the amount of twenty-two dollars and twenty-five cents. It is certainly clear, specific and sufficient to that extent. Mr. Chitty says, that, with respect to the form in which a verdict should be given, which partially convicts and partially acquits, it has been holden that it ought to find, specifically, not guilty of the higher, and guilty of the inferior charge ; and that, if it merely find the defendant guilty of the inferior offense, it will be of no avail. But he remarks, that there are so many instances in which a verdict taking no notice of the aggravation has been regarded as sufficient, that it does not seem necessary to follow this technical form at the present day. 1 Chitty Cr. Law, 641; 2 East P. C. 518. In the case of special verdicts, the rule is very strict. There, all the circumstances constituting the offense must be found; and the court cannot supply a defect in the statement made by the jury on the record, by any intendment or implication whatever. 1 Chitty Cr. Law, 644; State v. Duncan, 2 McCord (S. C.) 129; Commonwealth v. Call, 21 Pick. 509; Dyer v. Commonwealth, 23 id. 402. In the present case, however, the jury obviously found the defendant guilty of stealing property to the amount of twenty-two dollars and seventy-five cents, described in the indictment ; and he can be sentenced for that offense. Commonwealth v. Duffy, 11 Cushing, 145; Moon v. State, 3 Porter (Ind.) 438. The circuit court evidently sentenced the defendant under section 15, chapter 165, R. S.; whereas he should have been sentenced under the latter clause of the next section. When the property stolen does not exceed the value of one hundred dollars, and does exceed twenty dollars, the punishment by imprisonment in the state prison cannot exceed the term of one year. It may, indeed, be- a matter of grave doubt, whether the record shows any proper judgment, under the decisions in Benedict v. State, 12 Wis. 314; Pegalow v. State, id. 534. It is unnecessary to examine that question, since there must be another judgment upon the verdict, for the reason just given.

A still further objection was taken to the verdict. It was claimed that, upon an indictment for robbery, where the jury find the facts essential to constitute robbery are wanting, they cannot convict of stealing from the person, or simply of larceny, even though the evidence would warrant such a finding. This position is untenable. The offense of robbery surely includes the less, but kindred, offense of larceny; and it is well settled that, upon an indictment for a greater offense, the jury may convict of the less. 1 Archb. Cr. Pr. (Waterman’s ed.) 601; 1 Chitty’s Cr. Law, 638; Dinkey v. Commonwealth, 5 Harris, 126; Wharton’s Cr. Law, §§383 et seq.; §9, chap. 179, R. S. 1858.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded for the proper judgment upon the verdict.