State v. Lamb

242 Mo. 398 | Mo. | 1912

FERRISS, P. J.

Conviction for robbery in the first degree, committed under the following circumstances, as testified to by witnesses for the State:

On the night of March SO1, 19101, the defendant and one other entered the store of the prosecuting witness in Kansas City. One of them pointed a pistol at the prosecutor and took money from the cash drawer in his presence, while the other kept watch at the doors.

The defense was an alibi testified to by the defendant.

Although the case comes up here upon a full bill of exceptions, there is no appearance in this court upon the part of appellant. We have, however, examined the record and bill of exceptions carefully, and. fail to find substantial error therein. There is no assignment of errors here. The motion for new trial complains of the refusal of the court to give certain instructions offered by the defendant, but such instructions are not preserved in the bill of exceptions. Complaint also is made of the rulings of the court upon the admission and exclusion of testimony, but no exceptions to such rulings were saved. Complaint is also made of the argument of the prosecuting attorney at the close of the case, but the matter complained of is not preserved in the bill of exceptions.

The information is in proper form; the verdict is responsive thereto; proper instructions were given covering all phases of the case, including alibi, and the verdict is in due form.

One single question, possibly, presents itself upon this record. The information charges robbery “from the person,” while the proof was that it was “in the presence” of the prosecuting witness. We do not regard this question as a serious one. At common law it was ruled that the charge of robbery from the person was satisfied by proof that the money was taken in the presence of the person. This, as a matter of construction. In Donnelly’s case, 2 East, P. C., 725, Lord Mansfield says, “If the owner threw down his money, or had it not about his person, at the time, though it were in Ms presence, these by construction have been holden to be equivalent to an actual taking from the person.” To the same effect is State v. Lawler, 130 Mo. 366 ; Breckenridge v. Commonwealth, 97 Ky. 267.

Finding no error in the record, the judgment is affirmed.

Kennish and Brown, JJ., concur.