92 P. 566 | Mont. | 1907
delivered the opinion of the court.
On March 24, 1906, the county attorney of Silver Bow county filed an information in the district court charging the- defendant and appellant, William Paisley, with the crime of robbery. It was also charged in the information that in March, 1902, the defendant was convicted of the "crime of burglary in the district court of Larimer county, Colorado; and it is further' charged that in May, 1898, the defendant was convicted" of the crime of assault to rob and burglary in the district court of Park county, Colorado. To this information the defendant entered a plea of not guilty. A trial was had, which resulted in a verdict finding the defendant guilty of robbery as charged, and which verdict also found that the charges of prior convictions were true. Upon this verdict there was rendered and entered a judgment against the defendant, fixing, his punishment at imprisonment in the state prison for fifty years. From the judgment, the defendant appeals.
1. It is contended by the appellant that the information does not state facts sufficient to constitute the crime of robbery. Sections 390 and 391 of the Penal Code read as follows:
“See. 390. Eobbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.
“Sec.'391. The fear mentioned in the last section may be" either: (1) The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his, or member of his family; or (2) The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery.”
In appellant’s brief it is said that this information is insufficient, “in this: that it does not state wdiat kind or man
In 24 Encyclopedia of Law (second edition), 996, it is said: “While the particular degree of force requisite to effect the crime is not defined by the common law, nor in many of the states by statute, if any injury is done to the person or there is any struggle by the party to keep possession of the property before it is taken from him, there will be a sufficient actual violence. If there is sufficient violence to effect and carry out the evil intent, its degree is not of much importance.”
In State v. Brown, 113 N. C. 645, 18 S. E. 51, the contention was made that “no force is charged” in an indictment charging robbery; but the court said: “The charge that the defendant ‘did make an assault,’ * * * and ‘put in bodily fear and danger of his life,’ and ‘then and there feloniously and violently did seize, take and carry away’ $10 in money from the prosecutor, is a very explicit allegation of force. Indeed, the words ‘feloniously and violently’ were of themselves sufficient.” The Minnesota Penal Code (Gen. Stats., 1894, sec. 6478) defines robbery as follows: “Robbery is the unlawful taking of personal property, from the person or in the presence of another, against his will, by means of force, or violence or fear
The information in this case is in substantially the same language as the information in the case of State v. Clancy, 20 Mont. 498, 52 Pac. 267, which information was held to be sufficient.
Since the Code does not define the degree of force necessary to constitute the crime, we hold that it is not necessary for the information to charge the degree of force used. The Code says that, if the taking was accomplished by force, it is sufficient; and we think that the allegation that the taking was by means of force is sufficient.
Again it is said: “There is no allegation in the information stating facts which bring the offense within the definition of fear as defined in section 391.” But tMs contention may be disposed of in the language of this court in State v. Clancy, above, where it is said: “Without deciding whether the allegation with respect to fear is insufficient, because it omits to describe the kind of fear entertained by Carroll, we think the allegation of force, which is the alternative element in the of
2. The next contention is that the allegations of prior convictions are not sufficient. The first of these allegations, omitting formal parts, is: “That heretofore, to wit, on the-day of March, 1902, the said defendant, "William Paisley * * * was, by a judgment duly given and made by the district court of the state of Colorado, in and for Larimer county, convicted rof the crime of burglary, and on said judgment was sentenced to serve a term of seven years in the state penitentiary of the said state of Colorado, and did so serve said time.” The second is similar, except that it omits the words “and did so serve said time.”
Of these allegations it is said by appellant: “They are fatally defective for failure to allege the law of the state of Colorado to show that such acts were felonies in that state”; and Commonwealth v. Finn, 27 Ky. Law Rep. 771, 86 S. W. 693, is cited in support of this view. But that case is not in point here. It appears from the opinion that in Kentucky a charge of former conviction is held to be a charge of a separate offense, for the court says: “The attempt of the commonwealth was to charge appellee by the second count in the indictment with the offense of being an habitual criminal.” And, since the Code of that-state requires that the indictment must be direct and certain as to the circumstances of the offense charged, the reason for the court’s conclusion is apparent.
Particular stress is also laid upon the fact that in that case the indictment failed to state in what courts the defendant had been previously convicted. This is done in the information now before us. Furthermore, this, court held in State v. Gordon, 35 Mont. 458, 90 Pac. 173, that the charge of prior conviction is not a charge of a separate offense, and therefore the reason for the conclusion of the Kentucky court is absent here.
Our only concern is to know whether the offense for which the defendant was convicted in Colorado is one which in this state subjects an offender to imprisonment in the state prison; and it is not necessary to allege the facts constituting the crime there, for they are not issuable facts. The defendant cannot now ask to have the question of his guilt or innocence of the crime charged against him in Colorado determined. The only issuable fact in this respect is: Was the defendant convicted of the offense named in Colorado 1 Section 2146 of the Penal Code is conclusive of this. It provides, among other things: “Whenever the fact of a previous conviction of another offense is charged in an indictment or information,” etc. Under this statute,- all that the pleader is required to do is to allege the fact that the defendant had theretofore been convicted of an offense, naming it, and giving the date and court which rendered the judgment. Courts of other states having different statutes may hold a contrary view; but we are satisfied that our conclusion is the only one which can be sustained by reason, in view of the provisions of our statutes. This is true of all offenses known to our law. But, if the offense is not known to our law, then the statutes above do not govern, and a different rule would have to be applied.
Assuming that the allegations of a prior conviction of the crime of assault to rob are not sufficient, since such a crime by that name is not known to our law, still it does not follow that this judgment must be reversed. The only purpose of such
3. But it is urged with particular emphasis that the punishment imposed in this instance was not warranted by law. This contention must be resolved by reference to sections 392 and 1232 of the Penal Code, which provide:
“Sec. 392. Robbery is punishable by imprisonment in the state prison for a term not less than one year nor more than twenty years.”
‘ ‘ See. 1232. Every person who, having been convicted of any offense punishable by imprisonment in the state prison, commits any crime after such conviction, is punishable therefor as follows: •
“(1) If the offense of which such person is subsequently convicted is such that, upon a first conviction, an offender would be punishable by imprisonment in the state prison for any term exceeding five years, such person is punishable by imprisonment in the state prison not less than ten years.
“ (2) If the subsequent offense is such that, upon a first conviction, the offender would be punishable by imprisonment in the state prison for five years, or any less term,' then the person convicted of such subsequent offense is punishable by imprisonment in the state prison not exceeding ten years.”
It is said that subdivision 1 of section 1232 is only applicable to crimes the minimum punishment for which exceeds five years’ imprisonment, and, since robbery may be punished by imprisonment for a term of one year, this defendant, if punishable at all, could only be punished under subdivision 2 of section 1232,. wherein the maximum is fixed at ten years’ imprison
The appellant’s case comes squarely within the meaning of subdivision 1 above, as we have thus construed it; and the court was therefore fully warranted, so far as this record discloses, in meting out the punishment which it did.
4. But it is said that an impossible state of facts is disclosed by the information, in that it is alleged that the defendant was sentenced in 1902 to a term of seven years’ imprisonment in the Colorado penitentiary, and did serve said time; and, since seven years have not yet elapsed, the information in effect charges that while the defendant was incarcerated in the Colorado penitentiary he committed robbery in Montana. But, as we have said above, all that was required of the pleader was to state — -as he does in this information — that the defendant “on the-day of March, 1902, was by a judgment duly given and made by the district court of the State of Colorado, in and for Larimer county, convicted of the crime of burglary”; and
5. Exception is taken to instruction No. 9, given by the court, which copies all of section 1232 above. We think the court should not have given subdivision 2 or 3; but having given an instruction embodying the provisions of section 392, it seems impossible that the jury could have been misled or confused by embracing in instruction No. 9 the portions of section 1232 which were not applicable to this case. And what we have just said is equally applicable to instruction No. 18.
6. While the giving of instruction -No. 10 was erroneous, it was error without prejudice. The jury did not fix the punishment, but left it for the court to fix; and since the punishment prescribed by the court is within the limit fixed by the statute, the defendant cannot complain of this technical error, which manifestly did not work to his prejudice.
7. In order to enable the jury to fix the punishment, if they decided to do so, the court gave instructions 11 and 12, defining burglary and the punishment for that crime. This was proper, since the defendant was charged with having been previously convicted of the crime of burglary. The court might in so many words have told the jury that in this state burglary is punishable by imprisonment in the state prison; but the fact that the court, in doing this, was more elaborate than was necessary, is of no moment, since what the court did tell the jury was correct.
The record does not advise us what further instructions the court gave in response to the jury’s request. The Code provides that in such a case the court must give such additional instructions, in the presence of the county attorney, the defendant, and his counsel (Pen. Code, sec. 2123), and that such instructions shall be in writing (Pen. Code, sec. 2070, as amended by Act of February 15, 1901; Sess. Laws .1901, p. 173). The instructions are a part of the record of the ease or judgment-roll. (Pen. Code, see. 2229.) The certificate of the clerk is to the effect that the record contains a copy of all papers constituting the judgment-roll; so that such additional instructions so given by the court must be contained in this record, though not by any particular designation. The instructions dealing with the question of punishment are 9, 12, 13 and 18; and since every presumption is in favor of the judgment of the district court, and it is incumbent upon the appellant to point out the specific error upon which he relies, in the absence of anything to show which of these instructions was, or which instructions were, given in response to the request of the jury, we must presume in favor of the action of the trial court; and if, in response to such request, the court gave instruction No. 9, while it includes more than it should, it is not erroneous, as we have
9. Complaint is made of instruction No. 15. Of course, this instruction is not technically correct. The opening sentence in part is: “Flight or concealment is'relevant testimony,” etc. Of course, that is not true as a matter of fact. What the court meant to say was that testimony showing or tending to show flight or concealment is relevant testimony; but this is not the objection urged. A correct statement is contained in the body of the instruction.
In appellant’s brief it is said that this instruction directly told the jury that “flight or concealment is relevant testimony for the prosecution * * * from which guilt may be proven beyond a reasonable doubt.” But this is not what the instruction says. That statement in the brief omits the very important phrase, “and it comes in with other incidents.” The word “incidents,” as here used, means circumstances. The first part of the instruction assumes to lay down a general proposition of law which is made applicable to the particular case by the following portion of the instruction.
Again, it is contended that this instruction is erroneous, in that “it tells the jury that they may consider the alleged fact of flight in arriving at a verdict after they have arrived at a verdict.” But this criticism is not warranted. What the instruction does in effect say is that, if the jury are satisfied that the crime charged in the information has been committed by some one, then they may take into consideration any testimony showing, or tending to show, flight or concealment by the defendant, in determining whether the defendant is the party guilty of the offense; and this is correct. (State v. Lucey, 24 Mont. 295, 61 Pac. 994.)
The opening sentence of instruction No. 25 is as follows: “You are instructed by the court that one of the defenses interposed by the defendant in this ease is what is known in law as an alibi, that is, that the defendant was at another place at the
11. Complaint is made of the refusal of the court to give defendant’s requested instructions 29, 32, and 33; but we think the subject matter of these instructions was fully covered by the instructions given.
12. Complaint is also made of the refusal of the court to give instruction No. 39, asked by the defendant, as follows: “You are instructed by the court that in this case there has been testimony given by police officers and detectives, and in weighing their testimony greater care should be used by the jury in relation to the testimony of persons who are interested in or employed to find evidence against the accused than in the case of other witnesses because of the natural and unavoidable tendency and bias of such persons to construe everything as evidence against the accused, and disregard everything which does not tend to support their preconceived opinions of the matter in which they are engaged.” Such an instruction is erroneous under any possible theory of this or any other case. Our Code provides: “The jury, subject to the control of the court in the cases specified in this Code, are the judges of the effect or value of evidence addressed to them, except when it is declared to be conclusive,” etc. (Code Civ. Proc., sec. 3390.) This statute is the law of the state; and, no matter what other courts may have decided, in the absence of like statutes, we are bound by these
We do not concede that this proposed instruction is a correct statement of facts; but, in any event, it is a comment upon the weight of the evidence, and, if it had been given, the court would have invaded the province of the jury.
We find no reversible error in this record, and the judgment is therefore affirmed.
Affirmed.