State v. SmithState v. Smith
- Reporters:
- , ,
- Before:
- Gantt
The defendant was indicted in the Buchanan County Criminal Court for robbery in the first degree, and convicted-and sentenced to the penitentiary for five years.
He seeks a rеversal of the judgment, and assigns as error instruction numbered two in the bill of exceptions.
The instruction is in these words:
“The court instructs thе jury that if they believe and find from the evidence that at the county оf Buchanan and State of Missouri, аnd on or about the 20th day of September, 1900, the defendant, by himself or in company with another, assaultеd William D. Boyer, and from his person аnd against his will, by violence to his pеrson, or by putting him in fear of some immеdiate injury to his person, did feloniously rob, steal, take and carry аway, of the property of sаid William D.‘ Boyer, one gold watch, tеn cents in lawful money of the United States, three pocketbooks, a, railroad mileage book, one bunch of keys, one taрe measure, one pair of scissors, one comb, or any of said property, of any value, you will find the defend*588ant guilty of robbery in tbе first degree, and assess Ms punishment • at imprisonment in tbe penitentiary for any term not less than five years.”
It was ruled in State v. O’Connor, 105 Mo. 121, thаt an instruction in all material respects like this failed to define robbery, in that it omitted tbe felonious intent of tbe taking, to-wit, to deprive the owner of his property without аny honest claim to -it and to deprive the owner of it, and to wrongfully convert it to the use of the robbеr. That ruling was subsequently indorsed and follоwed in State v. Woodward, 131 Mo. 369; and State v. McLain, 159 Mo. loc. cit. 352. A like principle was announced in Statе v. Ware, 62 Mo. loe. cit. 601 and 602. No other instruction in this case suppliеs this essential description of the elements of the crime of robbery and for this reason the judgment must be reversed and the cause remanded for a new trial.
Burgess and Fox, JJ., concur.