104 Mo. 365 | Mo. | 1891
— The defendants were tried for and convicted of robbery of the first degree in the circuit court of Livingston county in September, 1890, and sentenced to imprisonment in the penitentiary for a term of five years. They have appealed to this court to obtain a reversal of this sentence.
I. It is urged, first, that the indictment is defective, in not charging that defendants feloniously put the prosecuting witness “in fear of some immediate injury to his person.” This contention is not tenable. The indictment charges that the defendants feloniously assaulted the prosecuting witness and feloniously robbed, stole and took from him the sum of $7.25. This is sufficient. It is not necessary, at least in Missouri, to allege that the putting in fear was done feloniously. State v. Wilcoxen, 38 Mo. 370; State v. Davidson, 38 Mo. 374 ; 2 Bish. Crim. Proc., sec. 1003; Kelly, Crim. Law, sec. 575; R. S. 1889, sec. 3530.
II. The second contention is, that the court erred in failing to instruct the jury that, before they could convict defendants of robbery, they must first find from the evidence that they took the money with a felonious intent. Upon an examination of the instructions given, we find that the court did fail to do this. It is true, one of the instructions given told the jury that, if defendants took any money from the prosecuting witness, “ in the manner alleged in the indictment,” they were guilty of robbery, and the attorney for the state insists that that is sufficient. We do not think so.
Robbery is compounded of larceny ánd force. The defendants were not guilty of robbery, unless they took the money from the prosecuting witness, without an honest claim to it or any of it, and with the intent to deprive him of the ownership therein.
The instruction given by the court, defining the offense, is as follows: “The jury are instructed that, if they believe from the evidence, beyond a reasonable doubt, that the defendants, James Brown and William Hymes, at the time and place alleged in the indictment, took any money from the person of the prosecuting witness, Herman Ottoman, in his presence and against his will, by then and there putting the said Herman Ottoman in fear of some immediate injury to his person, and that the said money so taken was then and there the property of the said Herman Ottoman, then, if the jury so believe, they will find the defendants guilty and assess punishment at a term of imprisonment in the penitentiary not less than five years.”
This contains all of the elements of robbery of the first degree under our statute, except that of the felonious intent. This is omitted, and this is a material error, for which the judgment of the trial court will have to be reversed.
The evidence on the part of the state shows that Herman Ottoman, the prosecuting witness, fell into the company of defendants on the twenty-sixth day of
Hymes says: “He took out a piece of paper, unrolled it and took a $5 bill and held it in his right hand, and held $2.25 in his left hand. Brown reached over and took hold of the bill and pulled it, and Ottoman let go it. We then told him to go with us up to Sturgis and get his $3 out of it. He started south, and as he passed by Brown he gave him the silver. We both told him to come back and get the $5 bill. We called twice for him to come back. He said, ‘ I go my way, you go yours.’ This was all that was said or
On cross-examination, he says Brown jerked the $5 bill out of Ottoman’s hands. Brown corroborates Hymes in all the essential particulars. Some of the witnesses for the state testified that defendants claimed that Ottoman owed them, and that they used no force in getting possession of the money. John Hill, who was called on behalf of the state, testified that the defendants “said on the way to town that they told Ottoman to go with them to Sturgis and get change out of the $5, as Ottoman owed them §2.”
If this story of the defendants is true, they were guilty of no offense, because the felonious intent was wanting. Regina v. Hemmings, 4 F. & F. 50: State v. Broderick, 59 Mo. 320; 2 Bish. Crim. Law [7 Ed.] sec. 1162, and cases cited; Kelley, Crim. Prac., sec. 582. That their version of the affair is not as probable as that of the prosecuting witness is immaterial. They had a right to have the question of their guilt or innocence fairly submitted to and passed upon by the jury on the facts they detailed. State v. Banks, 73 Mo. 692; State v. Palmer, 88 Mo. 568 ; State v. Partlow, 90 Mo. 608 ; State v. Young, 99 Mo. 666.
III. In this case the court should instruct the jury that “if they find from the evidence that defendants, at the county of Livingston and state of Missouri, in July, 1890, took any money, the property of Herman Ottoman, from his person or in his presence and against his will, by putting him in fear of some immediate injury to his person, without any honest claim to such money on their part, and with the intent to deprive the said Ottoman of his ownership therein, then they should find them guilty of robbery of the first degree and assess their punishment at imprisonment in the penitentiary for a term of not less than five years, eaeh. But on the
IV. The court committed no error in instructing the jury that Hymes was guilty of the crime of robbery, if he was present, aiding and abetting Brown in its commission, though he got none of the money’ (R. S. 1889, sec. 3944, and cases cited in note d); nor in telling the jury that, if the defendants were guilty of robbery, the amount of money taken was immaterial.
V. The defendants contend that the court erred in instructing the jury, that, “in determining the weight and credibility to be attached to the testimony of defendants, they should consider the fact that they are the defendants.” The specific objection to the instruction is in the use of the word “should,” instead of “may.” This form of instruction has received the sanction of this court in State v. Cook, 84 Mo. 40, and in State v. Young, 99 Mo. 666, though the court was not unanimous in either case. Section 4218, Revised Statutes, 1889, provides that the fact that the defendant is the party on trial may be shown for the purpose of affecting his credibility. When it is shown, however, it is the duty of the jury to consider it. That is what it is introduced for. They are the sole judges, it is true, of the weight to be given it; but they have no more right to leave it out of consideration entirely than any other fact admitted in evidence.
VII. The court committed no error in failing to instruct the jury that defendants might, under the evience, be convicted of petit larceny. If defendants told the truth, they were guilty of no offense, and, if the prosecuting witness is to be believed, they were guilty of robbery as charged.
For the error pointed out the judgment is reversed, , and the cause remanded for new trial in conformity to this opinion.