State v. Woodward

131 Mo. 369 | Mo. | 1895

Gantt, P. J.

The defendant was indicted at the January term, 1895, of the Jackson county criminal court jointly with one Mary Dwyer for robbery in the first degree. He was tried separately and convicted and sentenced to five years in the penitentiary. The evidence was amply sufficient to establish his guilt but he complains of an erroneous instruction asked by the prosecuting attorney and given by the court in these words:

“The court instructs the jury, that if you find and believe from the evidence that at Jackson county, Missouri, at any time within three years prior to the filing of the indictment in this case, the defendant, Fred Woodward, either alone or with another, in and upon witness, John Powell, did make an assault and any money of any amount of any value whatever, of the property of witness, John Powell, from the person and against the will of said John Powell, then and there, by force and violence to the person of the said John Powell, did rob, steal, take, and carry away, you will find the defendant guilty as charged in the indictment and assess his punishment at imprisonment in the penitentiary at not less than five years.”

The exception to. this instruction was well taken. The instruction falls short of an essential element, that of the felonious intent to deprive the owner of his property and to convert it to a use other than that of the owner without his consent and without any honest claim to it on the part of the taker. Had the instruction contained this necessary formula, it would have been sufficient. It was unnecessary to use the word “felonious” or “feloniously” or to define them. Regina v. Hemmings, 4 F. & F. 50; State v. Brown, 104 Mo. 365; State v. Moore, 101 Mo. 316; State v. O’ Con-nor, 105 Mo. 121; State v. Campbell, 108 Mo. 613; State v. Cantlin, 118 Mo. 100; Brown v. State, 28 Ark., 126.

For this error the judgment must be and is reversed and the cause remanded for a new trial.

Sherwood and Burgess, JJ., concur.