State v. Brill , 21 Idaho 269 ( 1912 )

SULLIVAN, J.

The defendant was charged with and ...convicted of the crime of robbery and sentenced to imprisonment in the penitentiary for a term of not less than five years nor more than eight years. A motion for a new trial was denied and the appeal is from the judgment and from the order denying the new trial.

Numerous errors are assigned, and the first is that the information failed to allege the ownership of the property taken. The charging part of the information is as follows :

“And the said John Brill, alias John Boden, did then and there and by means of said fear inspired in the said Efton Carr as aforesaid, willfully, unlawfully and feloniously take, steal and carry away from the person of the said Efton Carr, and against the will of him, the said Efton Carr, certain personal property then and there being in the possession of and on the person of the said Efton Carr, to wit, eight dollars in silver coin, lawful money of the United States of America and of the value of eight dollars. ’ ’

There is no direct allegation in said information as to who was the owner of said money, and counsel contends and argues that the information is defective, for the reason that it does not specify who was the owner of the money taken.

Sec. 6590, Rev. Codes, defines robbery as follows: “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. ’ ’ The essence of that crime is the felonious taking of personal property in the possession of another by means of force or fear. This court has held in a number of cases that an information in substantially the language of the statute is sufficient. (People v. Butler, 1 Ida. 231; United States v. Mays & Overholt, 1 Ida. 763; People v. O’Callaghan, 2 Ida. 156 (143), 9 Pac. 414; State v. Swensen, 13 Ida. 1, 81 Pac. 379.) While the information is not in the exact language of the statute, the words used there convey the same idea, and that is sufficient under the provisions of sec. 7685, which section provides that words used in a statute to define a public offense need not be strictly pursued in the indictment but other words conveying the same meaning may be used. The crime charged in said information is clearly and distinctly set forth in ordinary and concise language and in such manner as to enable the defendant to know with just what crime he was charged. That being true, under the provisions of our statute said information is sufficient. The words used in the indictment clearly negative the ownership of said money in the defendant, and under it the defendant might have been convicted of larceny. The general rule is that a person cannot commit the crime of robbery by taking his own property, unless the person robbed has a special property right therein and the right to its possession. (Clark and Marshall on the Law of Crimes, sec. 371.) It has been held that an information for robbery need not contain an allegation of the ownership of the property taken. (Clemons v. State, 92 Tenn. 282, 21 S. W. 525; State v. Dilley, 15 Or. 70, 13 Pac. 648; Owen v. Commonwealth (Ky.), 76 S. W. 3; People v. Smith, 86 Hun, 488, 33 N. Y. Supp. 989.) Did it tend to prejudice the defendant in regard to some substantial right because it was not alleged in the information that the railroad company or the conductor on the car was the owner of the money that he secured by the robbery? We think not. We do not suppose he could have put up any better defense than he did had it been alleged that the money belonged to the railroad company or any other person to whom it actually did belong. We think the information is sufficient, and that the court did not err in overruling the demurrer and motions made against said information.

2. The next specification of error is to the effect that the evidence is insufficient to justify the verdict. It is there contended that it did not appear on the trial to whom the money taken belonged. We think the evidence sufficiently shows that the money did not belong to the defendant, and we need not go further with that inquiry.

3. It is next contended that the evidence was not sufficient to identify the defendant as the person who committed the crime of robbery. We think it is amply sufficient. Where the defendant makes no claim of ownership to the property taken, the fact that the property was taken from the possession of the prosecuting witness is sufficient proof of the ownership, or at least of the fact that the defendant was not the owner and had no right to its possession.

4. It is next contended that a part of the first instruction given by the court was erroneous and not the law. The part referred to is to the effect that it was not necessary that proof be offered as to the ownership of the money alleged to have been taken from the prosecuting witness, and that it was sufficient under the statute if the state had satisfied the jury, as stated in the subsequent instructions, and that the money described was actually taken from the person and possession of the prosecuting witness. In subsequent instructions the court gave a clear statement of the law applicable to the case at bar. The contention of counsel is that the defendant could not be guilty of robbery if he only took possession of his own property, regardless of how he took possession of it. While that instruction was in part erroneous, it did not in any way prejudice the rights of defendant, as his defense was an alibi and not that he owned the money taken by him, or that he was entitled to the possession of it. There was no evidence whatever tending to show that said money belonged to defendant.

The evidence shows that the person robbed was a street-ear conductor, who was just about to start his car on a return trip from the end of the line, and that the defendant appeared with a handkerchief over his face and covered the defendant with a six-shooter and said: “Put that stool down. I mean business. The first man makes a move, I will kill him. Give me what you got; put it in your hat and put it on the stool. ’ ’ The conductor said, “Do you mean it!” and he replied, “I do.” And the conductor further testified: “He kept the gun on me all the time and I put what I had in my cap and put it down on,the stool. He said, ‘That’s not all you got.’ I said, ‘That’s all I got in my pockets,’ and pulled my pockets wrong side out. As soon as I put it on the stool he beckoned me to go back on the car and went and took the money out of the cap. He took his hand down that held the handkerchief but kept the gun on me and I got a good view of his face. The defendant, this man right here, was the man.....I put eight dollars in United States money in half dollars and dimes in the cap. The reason I did it was because he had the gun ■on me and for fear he would shoot me. After that'he backed away with the gun on me. He said, ‘If you ever report this, I will see you later. ’ ’ ’ The evidence all indicates that it was not the money of the defendant, and there is nothing in the evidence tending to indicate that the money did belong to the defendant. If the evidence showed that the money did belong to the defendant, then a different question would be presented. In State v. Howard, 30 Mont. 518, 77 Pac. 50, it was held on a prosecution for robbery, the fact that the money taken was in the prosecutor’s possession was sufficient evidence of ownership to sustain a conviction.

On the whole record, we do not think there was reversible error on account of giving said instruction. This court held in State v. Marren, 17 Ida. 766, 107 Pac. 993, that even though an instruction is erroneous and ordinarily the error would be material, yet if the evidence of the defendant’s guilt is satisfactory, that is, such as ordinarily produces moral certainty, or conviction in an unprejudiced mind, and the result would not have been different had the instruction been omitted, the case will not be reversed because of such erroneous instruction.

We have examined with some care the instructions given by the court to the jury and conclude that they sufficiently cover the law of the case. We have also examined the instructions requested by counsel for the defendant and we are satisfied that no prejudicial error was committed by the court in refusing to give said requested instructions.

The judgment must therefore be affirmed, and it is so ordered.

Stewart, C. J., concurs.