204 S.W.2d 716 | Mo. | 1947
Defendant was charged by information in the Circuit Court of the City of St. Louis with robbery in the first degree. Upon a trial he was convicted of larceny from the person of an amount less than $30.00, and his punishment assessed by the jury at imprisonment in the penitentiary for a term of three years. Judgment and sentence accordingly, and he appeals.
The motion for new trial assigned numerous errors, all of which have been abandoned except these two: (1) That instruction No. 2 (hypothesizing larceny from the person) was erroneously given because there was no evidence to support it; and (2) That the punishment is excessive because the value of the property involved is concededly less than $30.00.
W.Y. Taylor, a Pullman porter residing in Chicago, the alleged victim, was the only witness in relation to the facts immediately surrounding the commission of the alleged offense. From his testimony it was made to appear that on February 3, 1946, between 9:30 and 10 P.M., as he was walking along the sidewalk on the north side of Market Street, enroute to Union Station from a picture show he had just attended, and when about three blocks from the station, he was accosted by two men, one of whom he positively identified at the trial as defendant. He further testified that at that time "defendant put a pistol in my side," and he was thus required to go up an alley where the "two fellows stuck me up;" that defendant held the gun on him while the other man took a billfold from his (Taylor's) left rear pocket. The billfold contained $17.00 in money, and various identification cards and photographs, all property of Taylor.
[1] Proof of robbery will support a conviction for larceny from the person. State v. Keeland,
[2] There can be no doubt that in the first instance the state would have had the right to waive the force or fear of the robbery, and prosecute for the cognate and lesser offense of larceny from the person. State v. Keeland, supra. Such, however, was not done, but both robbery and larceny from the person were submitted in separate instructions, the latter conditioned upon a finding of not guilty of the robbery, and this notwithstanding the fact that all of the evidence showed the defendant was guilty of the greater offense, there being no evidence that the taking was not forcible. In State v. Reynolds,
[3] The other assignment is equally untenable as will appear from an examination of the applicable statute, Sec. 4460 R.S. '39 and Mo. R.S.A. It provides that when the property taken under the circumstances stated in Sec. 4459 (which embraces, among others, larceny from the person) is less than $30.00 in value, the offender may be punished by imprisonment in the penitentiary not exceeding seven years, or by imprisonment in the county jail not exceeding one year. Instruction No. 2, in specifying the punishment for larceny from the person, was in exact conformity with this section. The punishment assessed thereunder being within the range permitted by the statute, is not subject to the objection that it is excessive.
The record proper has been examined, and found to be sufficient. The judgment is, accordingly, affirmed. All concur.