State v. Weinhardt
161 S.W. 1151
Mo.
1913
Check Treatment
BROWN, J.

Defendant appeals from a judgment of the circuit court of St. Louis City sentencing him to serve five years in the penitentiary for the alleged crime of robbery in the first degree, as denounced by section 4530, Revised Statutes 1909.

The evidence on the part of the State strongly tended to prove that defendant entered a saloon kept by one Koebbe, and by seizing and choking Koebbe’s wife, who was temporarily in charge of said saloon, forced her to permit bim to take about twenty dollars from the cash register, which he carried away and converted to his own use.

It is unnecessary to incumber this opinion with the detailed evidence on the part of the State — it amply supports the verdict and judgment. The only error assigned upon which defendant seriously insists for reversal is the failure' of the trial court to instruct the jury on the crime of petit larceny.

Defendant’s learned counsel assert that the defendant’s evidence tends to prove that he did not use any violence towards Mrs. Koebbe, and did not place *634her in fear of immediate injury to her person while he was taldng the money, and, therefore, the court should have given his requested instruction on petit larceny.

That part of defendant’s testimony which it is contended presents the issue of petit larceny is as follows :

“Q. Did you drinlc any beer in the saloon, Andreas? A. I asked for a glass of beer.

“Q. Was it served? Did you get it? A. Yes, sir.

“Q. Now, tell the jury what happened, in your own way, as near as you remember it. A. Mrs. Koebbe was standing behind the bar and we was making fun there, talking like that, and I walked behind the bar and rang the cash register and took the money out, and she says I should don’t hurt her.

“Q. Speak louder. A. She told me that I should don’t hurt her, and I says, ‘No, I ain’t g'oing to do nothing’; and I walked right outside. That is all I know about it.

“Q. Did you take the money? A. Yes, sir.

“Q. That is all you know about it? A . Yes, sir.

“Q. Now, Andreas, I will ask you did you grab’ her by the throat, or put your hands on her, or threaten to kill her, or anything like that? A. No, sir, not a word like that. She was excited and nervous, and she was standing there talking.

“Q. But you did take the money, did you? A. Yes, sir.

‘ ‘ Q. Then when you got the money what did you do? A. I walked out. . . .

“Q. And you told her that you wasn’t going to kill her if she didn’t hollow? A. No, sir; I just told her I wouldn’t hurt her.

‘ ‘ Q. You did tell her that you would not hurt her if she did not hollow? A. No, sir.

“Q. What did you say to her? A. I just said to her, ‘I ain’t going to hurt you.’ She said, ‘D'on’t hurt me, take all.you want.’

*635“Q. And just before you went behind there you •ordered a glass of beer and she set that on the counter? A. Yes, sir.

“Q. And instead of taking the beer that is when you ran behind her? A. .No, sir; she took the nickel and went to put it in the register, and I walked back there.

“Q. You tell this jury you did not touch her at all? A. Yes,’sir.

“Q. And had not threatened to kill her ? A. No, sir. . . .

“Q. I will ask you whether you told this officer, Sergeant Hussey, or any other of these officers, that you had gotten Mrs. Koebbe by the throat, or threatened to kill her ? Did you tell them anything like that? A. No, sir.

“ Q. Did anything like that happen, as near as you can remember? A. No, sir. . . ■.

“Mr. Shaner: You say then, if I understand you correctly, that you know everything that you did on the inside of that saloon but you are not sure of everything you did on the outside; is that correct ? Answer that, yes or no.

“ Judge Zachritz: I object to that. He hasn’t stated that.

“A. I know I didn’t do much on the inside, just took that money and walked out; that is all I done.

“Q. If you were drunk and don’t know what you did, you don’t know but what you put your hands on this woman there, as she says you did, do you? A. I know I didn’t do that.

“Q. You didn’t touch that old woman in there? A. No, sir.

“Q. That is correct? A. Yes, sir.”

I. When this case was heard in Division TwO’ of this court, the writer was of the opinion that defendant’s own evidence amounted to an admission that at *636the time he took the money from the cash register he placed Mrs. Koebbe in fear of immediate injury to her person, and, therefore, I favored the affirmance of the judgment appealed from. But upon a reargument of the case in Banc, and a re-examination of the evidence, I am convinced that the testimony of defendant did warrant an instruction on the crime of petit larceny.

Robbery: Instruction for Petit Larceny.

The crime of robbery in the first degree includes all the elements of larceny with the added acts of violence or putting in fear, etc., so that, under section 4904, Revised Statutes 1909, if there was substantial evidence that in taking the money from Koebbe’s cash register the defendant did not assault Mrs. Koebbe nor place her in fear of immediate injury to her person, then it became the duty of the trial court to instruct the jury that it might find defendant guilty of petit larceny provided it believed that he took, stole and carried away the money from Koebbe’s: cash register, and that he was not guilty of robbery as that crime was defined in the instructions. Though Mrs. Koebbe may have been scared, that fact alone does not convert defendant’s acts in taking the money into the crime of robbery, unless he intentionally did or said something which placed her in fear of immediate injury to her person.

However improbable the testimony of defendant may have been the court could not refuse to submit it to the jury. By refusing and failing to give any instruction on the crime of petit larceny the court arbitrarily refused to allow the jury to consider defendant’s evidence, and thereby committed reversible error. [State v. Richardson, 194 Mo. 326; State v. McBroom, 238 Mo. 495; State v. Hoag, 232 Mo. 308, l. c. 316; State v. Bidstrup, 237 Mo. 273, l. c. 286.]

Other alleged errors are assigned by defendant, but, if errors at all, they are not likely to reoccur upon *637another trial of this canse; therefore we have not considered them.

For the error of the circuit court in failing to submit to the jury the issue of petit larceny as presented by defendant’s evidence, its judgment must be reversed and the cause remanded for a new trial. It is so ordered. All concur except Walker, J., who dissents in separate opinion filed.

WALKER, J

I. I do not concur in the majority opinion in its holding that an instruction for petit larceny was authorized upon the testimony of appellant ; upon this testimony he was, if not guilty of robbery, entitled to an acquittal. He denies the assault, and as confirmatory of his testimony that he did not put the woman, who was in possession of the money, in fear of immediate injury, he says, “I told her I wouldn’t hurt her,” to which she replied, “Don’t hurt me, take all you want. ’ ’ In the absence of an assault or putting in fear, one or the other necessarily essential to the crime, there can be no robbery, and if the owner of the property under these circumstances consented to the taking of the same, there is absent an equally vital essential to the existence of the lesser offense, and there can be no larceny. It is elementary that the crime of larceny always includes the taking and conversion of property without the consent of the owner. Hence, there can be no larceny if, as the appellant contends, the owner voluntarily parted with the possession of the property. [State v. Court, 225 Mo. 609, 614; State v. Anderson, 186 Mo. 25, 35; State v. Waller, 174 Mo. 518, 523; State v. Storts, 138 Mo. 127, 137.] This rule is so universal that the employment of further space in the citation of authorities in its support is not necessary, except to say that it has been held in Colorado that when property is taken with the consent of the owner, no matter how guilty may have been the purpose *638and intent of the taker, there is no larceny. [Connor v. People, 36 Am. St. (Col.) 295.] Measuring the grade of the offense by appellant’s testimony alone, he was, therefore, not entitled to an instruction for petit larceny, and the trial court ruled correctly in refusing same.

II. However, there is another equally cogent reason why the instruction should not have been given. While it is true that a defendant, when charged with an offense consisting of different grades, or where one offense includes another, may be entitled, under proper testimony, to an instruction for a lesser grade of offense .than the one with which he is. charged, although his testimony alone may afford the basis for such an instruction, there is a well-established exception to this rule, viz.: that the testimony, on which the instruction for a lesser grade of offense is based, must not be inconsistent and unreasonable when compared with all the other testimony in the case, and, if so, it should not be given.

In view of a different announcement of the rule in State v. Richardson, 194 Mo. 326, 344, which is not and does not assume to be supported by any authority, to the effect that a defendant is entitled to such an instruction as we have referred to, no matter how inconsistent and unreasonable may have been his statements, we deem it not improper to. summon at least a few of the well-reasoned authorities in this' jurisdiction to bear witness in opposition to the rule as thus announced.

In State v. Nelson, 118 Mo. 124, the accused was convicted of an assault with intent to kill, in having shot at an officer with a pistol; the court held that while a defendant in a criminal case has a right (which we do not question here) to testify as to the intent with which he did the act, he is not entitled to an instruction upon his oral testimony where it is contradicted by the physical facts.

*639In Payne v. Railroad, 136 Mo. 562, 583, the court holds in passing upon certain testimony not deemed in accord with the physical facts, that: “Even in criminal eases, involving liberty or life, we have repeatedly ruled that, if a party testifies directly in the face of, and in opposition to, obvious physical facts, neither courts nor juries are bound to stultify themselves by giving credence to such testimony,” citing in support thereof a number of Missouri cases.

In State v. Pollard, 139 Mo. 220, 228, this court says: “Heretofore we have said, and we have frequently repeated the observation, that neither courts nor juries are required to yield credence to the statements of a witness who, to save himself from justly merited punishment, challenges the array of all the physical facts in the case, and then boldly invokes instructions based upon such simulated evidence,” citing in support thereof some six earlier cases decided by this court.

In State v. Hamilton, 170 Mo. 377, an assault with intent to kill, it was held that an instruction will not be authorized where the defendant testifies that he shot simply to scare parties and not to do them any harm; that his intention will be measured and estimated by his acts and not by his subsequent explanatory words.

In State v. Fraga, 199 Mo. 127, 136, it is held in a murder case that where the facts are clearly inconsistent with the defendant’s account of the homicide, he is not entitled to an instruction on the ground of self-defense, citing in support thereof a number of cases.

In State v. Vaughan, 200 Mo. 1, 22, it is held that where the defendant testified to a pretended agreement and distinct understanding with others that no one should be hurt or killed in the perpetration of a felony agreed upon, which testimony was inconsistent with the physical facts, the court should for that reason alone refuse such an instruction. Courts are not required *640to yield credence to the statement of a defendant absolutely inconsistent with the physical facts and base an instruction on such simulated evidence.

In State v. King, 203 Mo. 560, 571, a murder case, the defendant sought to have the court give an instruction for a. lower degree of homicide based on his own testimony, which was refused on the ground that it was in contradiction of all the other testimony in the case, and that “neither courts nor juries are required to stultify themselves by rejecting the immutable facts in a case.”

In State v. Arnold, 206 Mo. 589, 600, an assault with intent to kill, the court holds that neither courts nor juries are required to accept as true, evidence which contradicts the admitted physical facts in a ease. •

In State v. Tucker, 232 Mo. 1, 18, it is held that where the statements of the defendant so contradict the physical facts, and his conduct was so unreasonable and inconsistent with the experience of mankind, that the court was not bound to believe him, the court was not bound to instruct the jury on his testimony for a less grade of the offense than murder in the first degrée.

. A brief review of the facts in the case at bar, undethe rule announced in the authorities cited, will enable it to be determined whether an instruction for petit larceny should have been given.

Appellant and his cousin, both under the influence of liquor — a fact repeatedly sought to be emphasized by the counsel for the defense during the trial — went to Koebbe’s saloon, at the time in charge of his wife, and, finding her álone, the cousin remained' outside, evidently on the lookout, while appellant caught Mrs. Koebbe by the throat and told her to shut up; that if she did not, he would kill her; he then dragged her about half length of the counter or bar, to where the cash register was located, and, while holding her with one hand, he opened the register with the other and *641took out the money. During this time she was not able to speak, but, recovering her voice, she said, “You can have that money but leave me alone; don’t kill me.” He then dragged her back to the end of the counter or har, and ran out; this in brief is the testimony for the State, except that the police officers, who arrested appellant and his cousin, testified that both made statements admitting the offense as charged.

The probative force of evidence must, under all circumstances, be measured by the standards of average human intelligence and the ordinary experience of men. Taking into consideration the fact that the appellant was bent on taking the money, which is not disputed, the testimony for the State is not a strained or distorted account of what probably happened. A woman of Mrs. Koebbe’s station and environment, especially when employed as a barkeeper in her husband’s absence, was little likely to be alarmed, much less intimidated by any words, although framed as threats, of a man under the influence of liquor. As the appellant was of the same nationality as Mrs. Koebbe, and had lived from boyhood in the neighborhood, he doubtless knew her personally and realized full well that nothing short of an assault, coupled with threats, would enable him to’ accomplish his purpose. He employed both, and forcibly held her while he robbed the register.

Defendants in criminal cases should, under all circumstances, be accorded fair and impartial trials, but where, as in this case, the proof of guilt is convincing, and the’ statements of the defendant are so contradictory to and inconsistent with all the other testimony, we cannot, without .subscribing to the violation of a rule in the administration of the criminal law, which we regard as established beyond cavil, agree with the majority that the instruction in question should have been given.

*642' A most earnest and vigorous defense was made by counsel for the appellant, and he was allowed such latitude that the transcript is replete with testimony in his client’s behalf, which, under a proper regard for the rules of evidence, should have been excluded; notwithstanding this, the jurors under their oaths found, beyond a reasonable doubt, that appellant was guilty as charged, and this finding was approved by the trial court in its overruling of the motion for a new trial.

I am, therefore, of the opinion that the judgment of the trial court should be affirmed.