63 W. Va. 69 | W. Va. | 1907
Tug McCoy, who stood indicted for robbery jointly with one Goodman, was tried alone in October, 1905, but the verdict of conviction was set aside and a new trial awarded. In July, 1906, he was again put upon trial, the jury acquitting him of robbery but finding him guilty of grand larceny. From the judgment overruling his motion for anew trial and of imprisonment for three years he is prosecuting this writ of error.
The judgment overruling his demurrer to the indictment and his motion for a new trial, giving instructions numbers one and two of the state, and refusing his instruction number one, are the alleged errors relied upon. The substantial charge in the indictment, containing but one count, is that McCoy and Goodman, on the first day of June, 1905, in Mingo county, armed with a loaded pistol, feloniously assaulted E. F. Chapman and put him in bodily fear, “and one promissory note of the value $50.85, one purse of the value of 25 cents, one time check of the value of 50 cents, and divers United States Treasury notes, divers United States silver certificates, divers United States bank notes, divers United States gold certificates, United States coin and United States gold coin in the aggregate of $19.33, and of the value of the goods, chattels, property and money of the said E. F. Chapman, from the person and against ■ the will of the said E. F. Chapman, then and there, towit, on the day and year aforesaid, in the county aforesaid, feloniously and violently did steal, take and carry away, against the peace and dignity of the state.”
Robbery at common law is the felonious taking from the person of another of goods or money to any value, by viqlence or putting in fear. Our statute does not define robbery. Code, section 12, chapter 144, prescribes the punishment: “If any person commit robbery, being
Counsel for the prisoner and for the state both argue alleged ground of demurrer, but the record shows no demurrer or action of the court thereon. The only ground of demurrer is the omission of a more particular description of the note and check. As a general rule, an offense is sufficiently charged if stated in the language of the statute, and with respect to notes, checks and other writings the name or designation by which they are commonly known is sufficient. Frederic v. State, 3 W. Va. 695; Commonwealth v. Gallagher, 126 Mass, 54; Commonwealth v. Brettum, 100 Mass. 206; Dignowitty v. State, 17 Tex. 521; Commonwealth v. Campbell, 103 Mass. 436. It is conceded that the indictment is good with respect to the United States money alleged to have been stolen, but it is claimed that the aggregate value thereof was insufficient to make the offense grand larceny, and that, the indictment being bad as to the note and check, the value of the money and purse would not raise the offense to grand larceny. If this were so, it would not make the indictment bad on general demurrer; for as to such of the subjects of larceny as were not sufficiently charged, they would be treated as surplusage and as not vitiating the indictment. State v. Howes, 26 W. Va. 111. As, however, the record does not show any demurrer or action of the circuit court thereon, the question is not before us and the demurrer need not be further considered. The point, however, recurs upon the second ground of error as
With respect to instructions for the state numbers one and two, we think they are both fatally defective. Number one properly defines robbery in technical language to be the felonious taking of money or goods of any value from the person of another or in his presence against his will by violence or putting in fear. It told the jury that if they believed from the evidence that McCoy, by himself or with Goodman, procured the money alleged in the indictment from Chapman by putting him in fear or by force or violence they should find him guilty of robbery. This instruction wholly ignored any of the articles alleged to have been stolen except the money. The second instruction told the jury that if McCoy and Goodman, ai-medwith a dangerous weapon and acting in concert feloniously and by force or violence or by putting him in fear, took from him or in his presence money or property of any value mentioned in the indictment, he was guilty of robbery. The evidence shows that both the defendant and Goodman were policemen, and whatever money or other articles were taken from Chapman were taken in an alleged attempt to make an arrest. These instructions cover robbery; neither considers the subject of larceny, covered by the greater offense charged. To make the offense grand larceny, more than the money would have to be considered. The first instruction would be bad as covering grand larceny if the effect was to tell the jury that the taking of the money alone would constitute grand larceny. Both instructions are defective also, not for the reasons which we understand are assigned, but for the more potent reason that each ignores .the element of intent necessary. Each assumes that the taking, by violence or putting in fear, of the money and property constituted the offense; whereas
But it may be inquired, did the giving of these erroneous instructions prejudice the rights of the prisoner? In this state the presumption is that an exceptor is prejudiced by the giving of an erroneous instruction, and the judgment will be reversed for this cause unless it ffiearly appears from the record, which is not the fact here, that the exceptor could not have been prejudiced by the giving thereof. State v. Douglass, 28 W. Va. 297; Ward v. Ward, 47 W. Va. 766; Ward v. Brown, 53 W. Va. 227.
Instruction number one for the defendant was in substance that if the jury believed from the evidence that McCoy was a policeman at the time and place mentioned, then it was his duty and right to arrest any person violating the law or acting disorderly in his presence, and that he was justified in carrying the pistol referred to. This instruction attempts somewhat inartistically to define the rights and duties of a police officer; but it is made inapplicable to the facts in the case, and is without the -conclusion justifying it; it was properly rejected.
As the judgment must be reversed and a new trial awarded, for the erroneous giving of instructions one and two on behalf of the state, we make no further comment on the evidence.
Reversed. Remanded.
