36 Mo. 372 | Mo. | 1865
delivered the opinion of the court.
The indictment charged that William Jeffers, on the thirtieth day of September, A. D. 1862, at the county of Cape Girardeau and State of Missouri, “ in and upon one William H. McLane, with force and arms, feloniously did make an assault, a nd the said William H. McLane in bodily fear of some immediate injury to his person then and there feloniously
The offence of robbery in the second degree supposes a case where the property is delivered, or suffered to be taken, through fear of some injury to the person or property, threatened to be inflicted at some future and different time. It is clear that this last offence is not included nor contained' in the description of the first offence, and that there are no words in the indictment which, by any construction, can be construed as describing the crime of robbery in the second degree. It is settled that if the inferior degree of offence be included in the allegations of the indictment, a conviction
The verdict must be considered as amounting to an acquit- ' tal on the charge of robbery in the first degree, and upon this indictment the defendant cannot be convicted of robbery in the second degree. But the -indictment does contain a description of the offence of grand larceny. The elements of description which distinguish robbery in the first degree from grand larceny maybe-regarded as surplusage,-and enough would still remain to.constitute- and sufficiently describe the crime of grand larceny. (R. C. 55, p. 640, §14; p. 575, § 25.) The judgment will therefore.be reversed, and the case remanded for a new trial, in ^accordance with -this opinion.