No. 2913 | Wash. | Jun 7, 1898
The opinion of the court was delivered by
The appellants were convicted of robbery under an information the essential parts of which are as follows:
“They, the said Isaac Johnson and Kick Shty, in the county of King, state of Washington, on the 10th day of January, A. D. 1898, unlawfully, wilfully, forcibly, feloniously and by violence and putting in fear one John Adams, did then and there forcibly and feloniously take from the person of said John Adams certain articles of value, to-wit: Seventy-five dollars in money of the United States, the same being of the value of seventy-five dollars in the lawful money of the United States and the same being the personal goods and property of the said John Adams.”
A demurrer was interposed to- this indictment, which was overruled by the court, and the action of the court in overruling the demurrer is the first assignment of error here, the contention being that the information does not in any manner designate or specify the coin, number, or
Section 1253 of the Code of Procedure (Bal. Code, § 6859) provides that,
“ In an indictment or information for larceny or embezzlement of money, bank notes, certificates of stock or valuable securities, or for a conspiracy to cheat or defraud a person of any such property, it is sufficient to allege the larceny or embezzlement, or the conspiracy to cheat and defraud, to be of money, bank notes, certificates of stock, or valuable securities, without specifying the coin, number, denomination or kind thereof.”
It is contended by the appellants that the common law requirement has not been changed by statute so far as indictments for robbery are concerned, but that the statute applies only to informations for larceny or embezzlement. We do not think that this restricted construction can logically be placed upon the statute. Eobbery is larceny with the element of force added. Mr. Bishop, in his work on Oriminal Law, in Vol. 2 (8th ed.) § 1159, says:
“ Eobbery charges a larceny together with the aggravating manner which makes it, in the particular instance, robbery. Por example, the property is described the same as in larceny; the ownership is in the same way set out, and so of the rest.”
We think the indisputable fact that robbery is a larceny of an aggravated kind would be a sufficient answer to appellants’ contention in this respect, but it has also been held that,
“ It is a principle of interpretation that what is newly created by statute has the same incidents as if it existed at the common law. Therefore if a statute makes it larceny to steal a thing not the subject of larceny at the common law, it is by legal consequence robbery to take this thing*413 forcibly from tbe person of one pnt in fear.” 2 Bishop, blew Criminal Law, § 1160.
It follows that to determine the sufficiency of tbe description of tbe stolen money we must inquire as to tbe particularity of tbe description required in -charges of larceny; and, as we have before seen, in a charge of larceny, under tbe statute, tbe indictment is sufficient.
It has been held, in accordance with this rule, in Brennon v. State, 25 Ind. 403" court="Ind." date_filed="1865-11-15" href="https://app.midpage.ai/document/brennon-v-state-7037029?utm_source=webapp" opinion_id="7037029">25 Ind. 403, that,
“ in an indictment for robbery tbe description of tbe property taken need not be more particular than is required in charging a larceny.”
And so to tbe same effect is McEntee v. State, 24 Wis. 43" court="Wis." date_filed="1869-02-15" href="https://app.midpage.ai/document/mcentee-v-state-6600159?utm_source=webapp" opinion_id="6600159">24 Wis. 43, where a great many cases are cited in support of tbe announcement.
Tbe same rule is substantially announced by Bishop on Statutory Crimes (2d ed.) § 139.
"We think no error was committed by tbe court in overruling tbe demurrer.
It is also contended that tbe court erred in eliminating tbe question of larceny from its instructions to tbe jury. We think in this instance that tbe omission was harmless, for tbe reason that tbe court instructed tbe jury that if they found that tbe defendants did not forcibly take tbe money from tbe prosecuting witness, them verdict should be not guilty. Tbe instruction was as follows:
“ Unless you are convinced from tbe evidence to a moral certainty and beyond any reasonable doubt that in Ufng County, state of Washington, during tbe month of January, 1898, and on or about the 10th day of said month, defendants forcibly took from tbe person of tbe prosecuting witness Adams at least some of tbe lawful money of tbe United States mentioned in tbe information, and that said money, if such there actually was, was tbe money of said Adams, and that defendants then and there forcibly took tbe same, with tbe intent to convert tbe same to their*414 own use, against the will of said Adams, then your verdict must be for defendants; that is, not guilty.”
The court continuing said:
“If the jury believe from the evidence that there was no offense in this cause on the part of defendants other than the mere stealing’ of money or snatching the same from the person of Mr. Adams, without resistance on his part, then your verdict will be for defendants. Unless witness Adams resisted the efforts of the defendants to get his money, if such effort there was, and such resistance was overcome by force, there must be no conviction in this case.”
So that it will be seen that the instruction of the court was more beneficial to the defendants than the instruction asked of the court, in their behalf. The word “ feloniously,” omitted from the instruction, we think was covered by the words used in the instruction.
The court not having been requested to define the phrase “reasonable doubt,” no error can be predicated upon its omission to do so. So far as the distinctions between robbery and larceny are concerned, in this case the undisputed testimony shows that if a crime was committed at all it was the crime of robbery.
The judgment will be affirmed.
Scott, C. J., and Aedebs, Gobdoe and Beavis, JJ., concur.