103 N.W. 419 | N.D. | 1905
The appellant was tried, and found guilty as charged, upon an information which charged the crime of robbery in the following language: “That at said time and place the above-named defendants, George O’Malley and John Sanders, did feloniously and conjointly, by then and there putting him in fear of his life, and against the will and from the person of one John Sandberg, take, steal and carry away certain personal property then and there belonging to said John Sandberg, to wit, one leather pocketbook, one small, gold-framed photograph, picture of said John Sandberg, one hunting knife, and certain and -divers coins, to wit, pennies, lawful money of the United States, the exact number to the affiant unknown. All of the above-described property being of the aggregate value of five ($5) dollars.” A motion in arrest of judgment was overruled, and this appeal is from the judg
There were numerous objections to evidence, and finally a motion for a directed verdict -of acquittal, all of which were overruled, and the rulings are assigned as error on this appeal. They are all based upon the contention that there was a fatal variance between the allegations and proof.
The evidence showed that the -defendant pointed a pistol at the complaining witness, Sandberg, and made him hold up his hands while -defendant’s confederate, O’Malley, took from the pockets -of their victim various articles of personal property. It is asserted that this proof of the assault with a pistol was inadmissible, because it tended to show a robbery accomplished by -force, and not fear, as alleged. There is no merit in the point. The -evidence -shows that the talcing was accomplished by both force and fear. It is clearly n-o variance when the proof shows more than it was necessary to prove in order to sustain the allegations. Sandberg, threw up his hands and submitted to the unlawful taking-of -his property from his person- because the presentation of the pistol and the command to throw up his hands conveyed to his mind, as it was intended to do, the fear that disobedience would endanger his
It is further contended that the description of the property taken, as shown by the evidence, does not conform to the description as alleged. There is no proof showing what kind of money was taken, nor is there any proof that the pocketbook taken was a leather one. The proof shows, however, that a knife and a gold-framed photograph of Sandberg’s were taken. These two articles were found in O’Malley’s possession when he was arrested, soon after the robbery. They were produced at the trial, identified as the stolen property, and introduced in evidence. The trial court and jury could not tell by an inspection- of them whether they corresponded to the description of them in the information. Although the same terms were not used by the witness in describing the articles at the trial as were used' in the information, it does not appear from the record that the articles- did not answer the description as alleged. It was not necessary to prove the taking of all the articles alleged to have been taken. The taking of any of the articles alleged was sufficient. People v. Wiley, 3 Hill (N. Y.) 194; Bishop’s New Criminal Procedure, section 488b, subdivision 4.
Error is assigned because the court did not define the crime of larceny, and inform the jury that it might, instead of acquitting or convicting the defendant of robbery, find him guilty of larceny. The court was not requested to so charge, and, upon the evidence disclosed by the record, the defendant was either guilty as alleged, or he was wholly innocent. The court properly instructed the jury to that effect. Blashfield’s Instructions to Juries, sections 190, 191; State v. Reasby, 100 Iowa, 231, 69 N.W. 451.
The other assignments of error based upon exceptions to the charge have not been discussed in the brief or in oral argument, and must be deemed abandoned. We have, however, examined the instructions excepted to, and can detect no error in them.
It is finally urged that the trial court omitted, in charging the jury, to state with sufficient fullness all the elements necessary t-c constitute the crime charged. There are no assignments of error covering this point, and it will not, therefore, be noticed. We
Shortly after the defendant’s appeal was perfected, but after he had been conveyed to the state penitentiary and commenced serving his sentence, his counsel applied to this court for a certificate of probable cause, with a view to suspending the further execution of the judgment, and of causing him to be returned to the Cass county jai-1 to remain pending the appeal. The certificate was denied, without regard to the merits, and upon the sole ground that the defendant had not put in bail, and had not, upon application to the trial court, been excused from giving bail. It will be seen by a reference to the provisions of our statute relating to the suspension of the execution of judgment in criminal cases that a certificate of probable cause alone, in a case not capital, does not suspend the execution of the judgment. Section 8835, Rev. Codes 1899, reads as follows: “An appeal to the Supreme Court from a judgment of conviction, stays the execution of the judgment in all capital cases, and in all other cases upon filing with the clerk of the district court of the county in which the conviction was had, a certificate of the judge who presided at the trial, or of a judge of the Supreme Court, that in his opinion there is probable cause for appeal, but not otherwise, except as hereinafter provided.” If this were the only provision on the subject, and if it were not for the proviso contained in it, the execution would be stayed by the filing of the certificate of probable cause. California has such a statute. Section 1243, Pen. Code Cal. Section 8335, supra, must, however, be read in connection with section 8340, to which the proviso refers. This section is as follows: “An appeal taken by the defendant does not stay the execution of the judgment in any case not capital, unless bail is put in, except when the judgment is imprisonment in the penitentiary, and an appeal is' taken during the term at which the judgment is rendered, and the defendant is unable to give bail, and that fact is satisfactorily shown to the court, it may, in its discretion, order the sheriff or other- officer having the defendant in custody, to detain him in custody without taking him to the penitentiary, to abide the judgment on appeal, if the defendant desires it.” It will be seen that the legislature has imposed a further condition upon the de
The judgment is affirmed,
