State v. Jenkins, 36 Mo. 372

State v. Jenkins

36 Mo. 372

Mo.

1865

Check Treatment

Holmes, Judge,

delivered the opinion of the court.

Thе 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 immediatе injury to his person then and there feloniously *375did put, and one horse, of the value of one hundred dollars, the property of the said William H. McLane, then and there feloniously did rob, steal, take and carry away”; and the defendant was charged as an accessоry or principal in the second degree, under the statute. (R. C. 1855, p. 638, § 5.) The offence described is robbery in the first degree, under the statute (R. C.1855, p. 574, § 20), which consists in “felonioúsly taking the propеrty of another from his person, or in his presence, and against his will, by violence to his pеrson, or by putting him in fear of some immediate injury to his person.” The jury rendered a verdict of guilty оf robbery in the second degree, and fixed the punishment at five years in the penitentiary. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Thе court instructed the jury, that if they believed from the testimony “ that a body of armed men went to thе house of William H. McLane, and by force or threats caused him to fear an injury would be done to his person or property, so that he concealed himself for his own prоtection, and, while so concealed, his horse was feloniously taken and carriеd away by said body, or any of them, each of the persons engaged in any way in the transаction is equally guilty; and if the defendant was one of them, the jury may find him guilty in the second degree.” In another part of the record, this same instruction reads, in the last clause, “in the first or second degree”; but, in either case, it authorized a verdict of guilty in the second degree. »

The offence of rоbbery 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 thеre 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 offеnce be included in the allegations of the indictment, a conviction *376of such inferior dеgree is consistent with established principles ; but if the lesser offence be totally or еssentially dissimilar in nature, and there be no count in the indictment which describes the inferior offеnce,- or contains words which may include it, no-judgment'can be given for that offence. (Stаte v. Shoemaker, 7- Mo. 177.) It is of the very essence of robbery in the first degree, that the violеnce or fear of injury shall be present and immediate to the person, and that the property shall be actually taken from his person, or in his presence and against' his will; but in thе second degree the property-is supposed to be delivered, or suffered ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍tо be taken, through fear that a threatened injury may be inflicted at some different -time, eithеr to his own person or' property, or to the person of any relative-or membеr of his family. This ■ offence is not described in the indictment,- and -the conviction and judgment for robbery in the second degree were clearly ■erroneous. The instruction is vaguely and ambiguоusly ■framed. It might be applied to either degree, but would rather seem to have contemplated the second- degree, or the case, where threats caused the party to fear that an injury would be done at a future time, so that he concealed himsеlf for protection. It does not say-an immediate injury. It was at least calculated -to mislead thе ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍jury, and should not have been given in that form.

The verdict must be considered as amounting to an аcquit- ' 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 cоntain 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,-аnd 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.

The other judges concur.