38 Mo. 374 | Mo. | 1866
delivered the opinion of the court.
This was an indictment for robbery in the first degree. The allegation is that the defendant feloniously did steal, take and carry away a rifle gun, the property of John Day, of the value of twenty dollars, “ winch said rifle gun the said
But the court committed error in instructing the j.ury. The first instruction to the jury, that if the defendant “ fe-loniously took and earned away the gun of John Day in his presence, or by putting said John Day in fear,” they would find him guilty of robbery in the first degree. This instruction being in the alternative, required only one of the'two elements when both together were not enough to constitute the whole offence under the statute. Besides being in his presence, and by putting him in fear of some immediate injury to his person, it must have b’een also against his will.
The first instruction asked by the defendant was entirely correct, and should have been given, if warranted (as it would seem to have been) by the evidence.
. The second instruction given for the State was also defective, in not including all the elements of the offence. The fourth instruction for the State was erroneous, in supposing that the jury might properly find the defendant guilty of robbery in the second or third degree, under this indictment. The offence charged was either robbery in the first degree or grand larceny only—State v. Jenkins, 36 Mo. 372.
It is unnecessary to notice the other exceptions taken by the appellant.
The judgment is reversed, and the cause remanded.
