262 Mo. 169 | Mo. | 1914
Defendant, convicted in the circuit court of Marion county of robbery in the first degree, after the usual motions for a new trial and in arrest, appeals. The punishment assessed upon conviction was imprisonment in the penitentiary for a term of five years.
The facts developed upon the trial so far as they are pertinent to the matters it has become necessary for us to discuss in the opinion, were substantially as follows:
In the afternoon of the 15th of February, 1913, one Herman Buckhold, the man alleged to have been robbed, and who is the prosecuting witness herein, was in the city of Hannibal for the purpose of selling a load of corn and of cashing a check which he had received for a carload of hay. This check was for the sum .of $120 and a few odd cents. The proceeds were paid to said Buckhold in cash, which consisted, odd cents excepted, of twelve ten dollars bills. Shortly after Buckhold obtained this money, defendant sold him a pair of eye glasses for the sum of one dollar. In the course of the sale of these eye glasses to Buck-hold, and while paying defendant therefor, the money in the possession of Buckhold was seen by defendant. Some little time thereafter, on the same afternoon and about three o ’clock, Buckhold left Hannibal and started upon his return to Ms residence, the same being some ten or eleven miles in a northwesterly direction from Hannibal. "While Buckhold was in Hannibal and between the time of his arrival there, which was about noon, and the time of his departure therefrom, which was about three o’clock, he had drunk some four glasses of whiskey, all of which glasses he ingenuously admits were full ones. On leaving Haninbal he purchased a pint of whiskey, from which, however, prior to the events hereinafter detailed, he swears he did not drink.
At about the hour of five o’clock defendant and said Settle caught up with Buckhold on'the public road, at a point some seven miles distant from Plannibal and engaged in conversation with him with reference to the sort of land to be found in the neighborhood; leaving upon the mind of Buckhold, without (so far as the record discloses) saying so in direct or explicit language, the impression that they were land buyers. Buckhold stopped his wagon; the defendant and Settle drove in front of his team and stopped their buggy, leaving the buggy across the road in such wise as to obstruct the passage of Buckhold’s wagon. After some other conversation as to the soil, the country and .the scenery within view, defendant and Settle asked Buckhold to drink a bottle of beer with them. Buck-hold at first demurred, but subsequently partially acquiesced ; b.ut upon defendant and Settle being unable, as they said, to find a bottle opener, Buckhold invited them to have a drink with him from the pint bottle of whiskey which he had theretofore purchased in Hannibal, and which he says had not up to that time been opened. Both defendant and Settle took a small drink of whiskey from Buckhold’s bottle; thereafter defendant came up on one side of Buckhold’s wagon and Settle upon the other. Settle engaged Buckhold in a conversation relative to changing a twenty dollar bill for him, and while Buckhold was engaged in this conversation with Settle and somewhat engrossed therein, and while he was leaning over toward Settle, who was on the left hand side of the wagon, the defendant climbed upon the front right wheel of the
Since the facts which transpired at tbe immediate moment of tbe alleged robbery are pertinent and decisive, and since Buckhold is tbe only witness who testifies touching them, we in fairness set out below from bis testimony what be said and all be said as to tbe manner in which defendant committed tbe alleged robbery :
“Q. In your own way tell tbe jury just bow it happened? A. You-see, while I was talking to Mr. Settle Mr. Parker got up on tbe wheel unbeknown to me and got bis band in my pocket, and I never bad any idea until I felt bis band in my pocket and felt tbe money jingle that be was upon tbe wheel at all. Well, I bad tbe whip in my band and I just gave him a punch and tbe team started moving and tbe wheel turned and Mr. Parker was off. I guess I ivas scared. 1 didn’t get scared until 1 got away.”
On cross-examination, touching this same matter tbe prosecuting witness said:
“They brought tbe bottle back and one wanted me to change tbe money and tbe other ran bis hand in my pocket. I was leaning over when I felt someone’s band in my pocket. While I was talking to Settle I felt what I thought was a.man’s band in my pocket. My hair began to get ‘curly’ and I got frightened after the horses started to run. I didn’t think there was anything wrong until be got bis band into my pocket, then I thought it was time for me to get away from him. That was the time when I noticed danger, when be got bis band in my pocket and took my money. That is all I can say. That is tbe time when I got scared and*176 dug out. I got scared right then. I didn’t see him when he put his hand in my pocket.”
Many objections are raised by the defendant, but the above statement and the above excerpts from the testimony of the prosecuting witness illustrate the only one of the alleged errors urged upon us-by defendant which we regard as pertinent. Mention of other matters complained of would do no good; such mention would be utterly useless either as an aid to the illumination of this case, or as an aid to -the science of jurisprudence, and would but serve to obscure the one decisive point in the case which we discuss in the opinion. If other facts, however, illustrative of this point, shall become necessary, we will advert to them and set them out in the discuásion of the legal phase involved.
OPINION.
The crime of robbery in the first degree is defined by our statute thus:
“Sec. 4530. Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence and against his will, by violence to his person or by putting him in fear of some immediate injuiy to his person . . . shall be adjudged guilty of robbery in the first degree.”
In passing, though not pertinent except as throwing light upon the cases which we cite which were ad
Our statute denounces but one offense, which, however, may be committed, as to the phase here in question in the instant .case, in two ways : by the felonious taking of the property of another from his person, (á) by violence, or (b) by putting him in fear of some immediate injury to his person. [State v. Smith, 119 Mo. l. c. 446.]
Manifestly no lengthy or involved argument is necessary to prove under the facts in the instant case, that Buckhold was not, at or prior to the taking of the silver coins from his pocket, put in fear by defendant, or by his accomplice Settle, of any immediate injury to his person. The fright of him who is robbed must be under the law an objective fright as contradistinguished from subjective fright; it must have been due, in short, to some act on the part of the accused, and not arise from the mere temperamental timidity of the person whose property happens to be stolen from his person or presence. [State v. Weinhardt, 253 Mo. 629.] Here defendant merely put his hand into the pocket of Buckhold while his accomplice Settle engaged him in conversation. The act of theft was wholly accomplished before Buckhold got frightened. No blow was struck or threatened; no weapon was used or shown, nor was any threat of injury, either immediate or remote, uttered by defendant. Robbery by putting in fear then clearly falls out of the case. In fact, learned counsel for the State do not urge this phase of robbery. Tne State does contend, however, that the force used by defendant in inserting his hand into the pocket of Buckhold and in drawing from such pocket the stolen silver coins was and constituted such violence under our statute as to make out robbery in the
Onr attention is called to the case of State v. Broderick, 59 Mo. 318; but in that case the watchcliain of the prosecuting witness was larcenously taken by defendant Broderick by forcibly tearing* it from the vest and from the watch, to both of which it was attached. When the prosecuting witness attempted to recover the chain the defendant struck him and ran. It is fairly clear from the reported case that the striking' of the prosecuting witness by the defendant Broderick was after the breaking loose of the chain from the person and after the leg'al asportation of the chain was consummated. We are not aided at all then by this latter phase of force and violence, since force to prevent arrest, or to prevent recovery of the stolen property after the asportation of the property is complete and after detachment from the person of the owner of the property is consummated, are not necessary elements of robbery in the first degree. [Kelley’s Crim. Law, 629; Thomas v. State, 91 Ala. 34; Routt v. State, 61 Ark. 594; People v. Stevens, 141 Cal. 488; Dawson v. Com., 74 S. W. (Ky.) 701.] In other words, the violence used in the robbery must precede, of be contemporaneous with the taking* of the property. [34 Cyc. 1799.] The presence of force or violence of the latter sort, will not serve to make that act of larceny robbery, which without such belated act of force would have been but ordinary larceny. [Thomas v. State, supra; Kelley’s. Crim. Law, supra; 34 Cyc. and cases cited, supra.]
Our court held in the Broderick case, supra, that defendant therein was properly convicted of robbery. The distinction between the facts in that case and those in the instant case is obvious. In the Broderick case the chain was attached to the clothing of the pros
It follows, that since upon the facts shown defendant was not guilty of robbery, the instruction prayed by defendant in the nature of a demurrer to the evidence should have been given.
This view renders a reversal of the case necessary. We shall not reverse the same and discharge the defendant, however,- since it has been held that under an indictment for robbery the accused may properly in a proper case, be convicted of larceny. [State v. Brannon, 55 Mo. 63; 25 Cyc. 103 and cases cited; State v. Keeland, 90 Mo. 337.] Pursuant to the prayer in the appellant’s brief we will reverse and remand the case for such action as the State may be upon the law and the facts advised to take. Other errors alleged we neecl not now notice, as they are such as will not necessarily happen again.
In passing, and in view of the attack made below upon the goodness of the information, but which attack seems to have been practically abandoned here by defendant, we may add that in our opinion the information is sufficient. [State v. Montgomery, 109 Mo. 645; State v. Calvert, 209 Mo. 280; State v. Kennedy, 154 Mo. 268.] It contains, it may be, words of surplusage added by learned counsel who drew it, out of the abundance of caution, but it is nevertheless good.