72 Mo. 456 | Mo. | 1880
The defendants were indicted for, and convicted of, an attempted theft, but were acquitted on two other counts of the indictment, the one for attempted robbery, the other for attempted burglary. The
The only p*oint for our determination is the sufficiency of the evidence to stistain the conviction. That evidence discloses a design by defendants to commit burglary in the first or second degree, and to commit robbery, for Rhodes states that they “went there with intention of going into the house and getting $150 belong to Mrs. J. C. Owing.” And he further states, oh being re-called: “We was to .get into the house, and one was to catch the old lady, and put something over the old lady’s head, so she could not make a noise, and hold her, and the other was to get the trunk and carry it out or break it open in the house.” Thus establishing an intention to commit a crime which, If committed, would have been robbery in the first degree. R. S. 1879, § 1302.. Rhodes, who had no intention to perpetrate a crime, but whose purpose was to “ catch ” the .defendants, further states : “ Craft and Mitchell and I went on to Owing’s; we went over and got up to the barn, and the dog barked in the yard, and a light flashed up all* •of a sudden in the house, and we suspicioned some man person was in the house, and we didn’t know whether to go in or not. Craft said he’d go in and kill the dog, and went in and shot at him, and came back, and said he had shot him, and that he believed.he heard some one whisper, and thought there was a man person in the house. We then walked about one hundred yards away, or so, and stopped And talked about going back. Craft said he didn’t believe it would pay to go back, that he thought there was some man person in the house. He told me to go back and watch
In the view we take of this case it is not regarded absolutely necessary to its determination to discuss what act it is which properly could be deemed an attempt within the purview of the statute cited. Perhaps it will be found when the question shall present itself in such shape as to require and receive that extended discussion which the importance of the subject evidently demands, that the circumstances of each particular case will have much to do in determining whether an act or a series of acts should be held a violation of the section before us. That section has been on our statute books since 1835, (Laws of that year, p. 211, § 1,) but this is the first instance which has occurred, it is believed, in this State, Where a construction of the section has been asked. The section in question is presumably derived from a like statute in New York, and should we follow the rulings made in that state upon the statute, no great difficulty, perhaps, would be experienced in coming to a conclusion favorable to the views advanced on the part of the prosecution as to what constitutes an attempt under statutory provisions. For in that state it has been held that where the prisoner solicited one K. to set fire to a barn and gave him materials for the purpose, that this was sufficient to warrant a conviction, though the prisoner did not mean to be present at the commission of the offense, and K. never intended to commit it. The People v. Bush, 4 Hill 133. And in the more recent case of the People v. Lawton, 56 Barb. 126, where the proof showed that having reconnoitered the premises, the prisoner de
But, as before stated, it hot being deemed absolutely essential in this case to determine what is, under the statute, an attempt to commit a crime, we shall refrain from determining the point, and this is our reason for thus refraining: We might concede that an attempt had been made, and an act had been done toward the commission of an offense, but still this concession would not warrant the conviction of the defendants on the third count of the indictment; for the evidence unmistakably shows a design to obtain the money by robbery, and not by larceny; and that if the act of shooting the dog can be regarded as an attempt, it was an attempt to commit the former, and not the latter crime. Had not Rhodes been re-called, there would have been more ground for saying that the money was to be obtained by larceny, coupled, perhaps, with burglary; but his testimony after retaking the stand, precluded any idea of an intended larcenous taking, and especially that the dog was shot as an act in furtherance of such taking. On the contrary, it very clearly appears, that the idea of chloroforming the house the next night,.
