Beard, Justice.
- An information was filed by the county and prosecuting attorney of Converse County against the plaintiff in error, William McGinnis, for the crime of robbery. The charge contained in the information being as follows: “That William McGinnis, late' of the county aforesaid, on the 12th day of December, A. D. 1905, at and in the county aforesaid, the said William McGinniss did then and there unlawfully, forcibly and feloniously take from the person of Norvil Lawrence by violence the sum of fifty dollars, and, more, lawful money of the United States and of the value of fifty dollars, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming.” To this information the defendant, McGinnis, pleaded “not guilty.” On the trial the jury returned a verdict of guilty against him, and he moved in arrest of judgment on two grounds: First, because the defendant had not been given a preliminary examination by an examining magistrate before the information was filed in the district court; and second, because the facts stated in the information are not sufficient to constitute an offense. The motion was denied-by the court, and the defendant sentenced to a term in the penitentiary, and he brings error.
The objection that the defendant had not been given a preliminary examination, if such was the fact, and if. the case was one requiring it under the provisions of Sec. 5273, R. S. 1899, should have been presented by a motion to quash if the grounds appeared upon the face of the record ; otherwise by plea in abatement; aid not having been so taken was waived by the plea of not guilty, by the express terms of the statute. (Sec. 5326, R. S. 1899.)
The other objection that the facts stated in the information do not constitute an offense, is one of the grounds upon [76]*76which a motion in arrest of judgment may be granted (Sec. 5418, R, S, 1899), and presents the question of the sufr ficiency of the .information. Robbery is defined by our statute as follows; “Whoever forcibly and feloniously takes from the person of another any article of value, by violence or by putting in fear, is guilty of robbery, and shall be imprisoned in the penitentiary not more than fourteen years.” This is but a restatement of the offense at common law and embraces all of the elements of robbery at common law. Blackstone defines robbery to be “the felonious and forcible taking, from the person of another, of goods or money to any value, by violence or by putting him in fear.” (2 Cooley’s Blackstone (4th Ed.), Bk. 4, 242.) It is an aggravated form of larceny and there can be no robbery without larceny. Bishop states that the elements of the offense to be averred and proved are, (1) a larceny, (2) wherein the asportation is from the person, and is (3) effected by force or by putting in fear. (2 Bishop’s New Crim. Procedure, Sec. 1001.) “The indictment should contain the allegations of simple larceny, with the added matter that makes the larceny robbery.” (Id., Sec. 1002.) “Ownership must be alleged-and proved precisely as in larceny.” (Id., Sec. 1006; 4 Cur. Raw, 1317.)
That the ownership of the property alleged to have been taken must be stated in an indictment or information for robbery has been- generally held by the courts of last resort in those states where the question has arisen. In a recent case in the supreme court of Iowa, under a statute which provides : “If any person, with force or violence, or by putting in fear, steal and take from the person of another any property that is the subj ect of larceny, he is guilty of robbery,” it was held that the offense thus created by the statute embraces all of the elements of the crime under the common law. And that robbery is but an aggravated form of larceny both at common law and under the statute; and as larceny is defined to be the felonious taking of the property of another, an allegation of- ownership is necessary in an indictment for [77]*77robbery. The indictment in that case charged that the defendant ‘ assaulted Thomas Malone, “and, with force and violence, wilfully and feloniously did steal, take and carry away from the person” of said Malone the sum of $75. The ownership of the property was not otherwise alleged in the indictment'. It was contended that the indictment was good because it charged that the defendant did “steal from the person of Malone.” But the court said: “It is true wc have held that the word ‘steal/ used' in the indictment, means a felonious taking. (State v. Griffin, 79 Ia., 568.) But we have never gone beyond this, and cannot, because of the statute already referred to.” It was held‘that under the common law it is necessary to allege and prove ownership precisely as in larceny and that such is the rule where it is a statutory crime. (State v. Wasson, 126 Ia., 320.) In People v. Vice, 21 Cal., 344, the indictment was for robbery and charged that the defendant’ “did violently and feloniously take money of the following description * * * from the person of another, to-wit: From the person of Jesse A. Brandy by force, threats,” etc. The indictment was not demurred to, but after a verdict of guilty defendant moved in arrest of judgment on the ground that the'ownership of the property was not stated in the indictment, which motion was denied. On appeal the supreme court held the indictment fatally defective for the want of such allegation and reversed the judgment. And in People v. Jones, 53 Cal., 58, it was held that an indictment for robbery must aver every fact necessary to constitute larceny, and more. And in People v. Ammerman, 118 Cal., 23, the defendant was informed against for robbery and pleaded former acquittal, once in jeopardy and not guilty. The opinion recites that “an information against the defendant for the crime of robbery involving the same transaction had previously been filed, and under it defendant was arraigned, and pleaded not guilty; a jury was impaneled, the-information was read and the plea stated. After the jury was sworn, and before any evidence was offered, upon motion [78]*78of the district attorney the information was dismissed and the defendant discharged. The ground for the motion was that the information did not allege the ownership of the property stolen,, which was in fact true.” It was held that the first information was invalid because- it failed to allege the ownership of the property taken, and there was no jeopardy; and that the court did not err in instructing the jury to find for the people upon the plea of former acquittal and once in jeopardy. The California cases on the question are cited and reviewed in a later case by the court of appeals of California (People v. Cleary, 81 Pac., 753), and it was again held that an information for robbery, which failed to allege the ownership of the property, did not charge an- offense.
We find nothing in the case of In re Myrtle, Cal. App., 84 Pac., 335, in conflict with the rule as stated in the other California cases.- It is there said: “In the Ammerman case the taking of the property might have been for some other purpose, for the language of the information does not intimate that the object was to steal it any more than the mere naming the crime ‘robbery’ might tend to indicate a. theft, and there being no allegation of ownership and no words used by which any inference could be drawn of ownership in one other than the defendant, except the mere possession Richard Johnson had of the money taken by Ammerman at the time. We think the decision in that case was correct.” Further on in the opinion in commenting on the case of People v.
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Beard, Justice.
- An information was filed by the county and prosecuting attorney of Converse County against the plaintiff in error, William McGinnis, for the crime of robbery. The charge contained in the information being as follows: “That William McGinnis, late' of the county aforesaid, on the 12th day of December, A. D. 1905, at and in the county aforesaid, the said William McGinniss did then and there unlawfully, forcibly and feloniously take from the person of Norvil Lawrence by violence the sum of fifty dollars, and, more, lawful money of the United States and of the value of fifty dollars, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming.” To this information the defendant, McGinnis, pleaded “not guilty.” On the trial the jury returned a verdict of guilty against him, and he moved in arrest of judgment on two grounds: First, because the defendant had not been given a preliminary examination by an examining magistrate before the information was filed in the district court; and second, because the facts stated in the information are not sufficient to constitute an offense. The motion was denied-by the court, and the defendant sentenced to a term in the penitentiary, and he brings error.
The objection that the defendant had not been given a preliminary examination, if such was the fact, and if. the case was one requiring it under the provisions of Sec. 5273, R. S. 1899, should have been presented by a motion to quash if the grounds appeared upon the face of the record ; otherwise by plea in abatement; aid not having been so taken was waived by the plea of not guilty, by the express terms of the statute. (Sec. 5326, R. S. 1899.)
The other objection that the facts stated in the information do not constitute an offense, is one of the grounds upon [76]*76which a motion in arrest of judgment may be granted (Sec. 5418, R, S, 1899), and presents the question of the sufr ficiency of the .information. Robbery is defined by our statute as follows; “Whoever forcibly and feloniously takes from the person of another any article of value, by violence or by putting in fear, is guilty of robbery, and shall be imprisoned in the penitentiary not more than fourteen years.” This is but a restatement of the offense at common law and embraces all of the elements of robbery at common law. Blackstone defines robbery to be “the felonious and forcible taking, from the person of another, of goods or money to any value, by violence or by putting him in fear.” (2 Cooley’s Blackstone (4th Ed.), Bk. 4, 242.) It is an aggravated form of larceny and there can be no robbery without larceny. Bishop states that the elements of the offense to be averred and proved are, (1) a larceny, (2) wherein the asportation is from the person, and is (3) effected by force or by putting in fear. (2 Bishop’s New Crim. Procedure, Sec. 1001.) “The indictment should contain the allegations of simple larceny, with the added matter that makes the larceny robbery.” (Id., Sec. 1002.) “Ownership must be alleged-and proved precisely as in larceny.” (Id., Sec. 1006; 4 Cur. Raw, 1317.)
That the ownership of the property alleged to have been taken must be stated in an indictment or information for robbery has been- generally held by the courts of last resort in those states where the question has arisen. In a recent case in the supreme court of Iowa, under a statute which provides : “If any person, with force or violence, or by putting in fear, steal and take from the person of another any property that is the subj ect of larceny, he is guilty of robbery,” it was held that the offense thus created by the statute embraces all of the elements of the crime under the common law. And that robbery is but an aggravated form of larceny both at common law and under the statute; and as larceny is defined to be the felonious taking of the property of another, an allegation of- ownership is necessary in an indictment for [77]*77robbery. The indictment in that case charged that the defendant ‘ assaulted Thomas Malone, “and, with force and violence, wilfully and feloniously did steal, take and carry away from the person” of said Malone the sum of $75. The ownership of the property was not otherwise alleged in the indictment'. It was contended that the indictment was good because it charged that the defendant did “steal from the person of Malone.” But the court said: “It is true wc have held that the word ‘steal/ used' in the indictment, means a felonious taking. (State v. Griffin, 79 Ia., 568.) But we have never gone beyond this, and cannot, because of the statute already referred to.” It was held‘that under the common law it is necessary to allege and prove ownership precisely as in larceny and that such is the rule where it is a statutory crime. (State v. Wasson, 126 Ia., 320.) In People v. Vice, 21 Cal., 344, the indictment was for robbery and charged that the defendant’ “did violently and feloniously take money of the following description * * * from the person of another, to-wit: From the person of Jesse A. Brandy by force, threats,” etc. The indictment was not demurred to, but after a verdict of guilty defendant moved in arrest of judgment on the ground that the'ownership of the property was not stated in the indictment, which motion was denied. On appeal the supreme court held the indictment fatally defective for the want of such allegation and reversed the judgment. And in People v. Jones, 53 Cal., 58, it was held that an indictment for robbery must aver every fact necessary to constitute larceny, and more. And in People v. Ammerman, 118 Cal., 23, the defendant was informed against for robbery and pleaded former acquittal, once in jeopardy and not guilty. The opinion recites that “an information against the defendant for the crime of robbery involving the same transaction had previously been filed, and under it defendant was arraigned, and pleaded not guilty; a jury was impaneled, the-information was read and the plea stated. After the jury was sworn, and before any evidence was offered, upon motion [78]*78of the district attorney the information was dismissed and the defendant discharged. The ground for the motion was that the information did not allege the ownership of the property stolen,, which was in fact true.” It was held that the first information was invalid because- it failed to allege the ownership of the property taken, and there was no jeopardy; and that the court did not err in instructing the jury to find for the people upon the plea of former acquittal and once in jeopardy. The California cases on the question are cited and reviewed in a later case by the court of appeals of California (People v. Cleary, 81 Pac., 753), and it was again held that an information for robbery, which failed to allege the ownership of the property, did not charge an- offense.
We find nothing in the case of In re Myrtle, Cal. App., 84 Pac., 335, in conflict with the rule as stated in the other California cases.- It is there said: “In the Ammerman case the taking of the property might have been for some other purpose, for the language of the information does not intimate that the object was to steal it any more than the mere naming the crime ‘robbery’ might tend to indicate a. theft, and there being no allegation of ownership and no words used by which any inference could be drawn of ownership in one other than the defendant, except the mere possession Richard Johnson had of the money taken by Ammerman at the time. We think the decision in that case was correct.” Further on in the opinion in commenting on the case of People v. Cleary, supra, it is said: “We reiterate all that was said in this opinion of People v. Cleary as applied to the facts in that case and in all cases of like character,'where there is a plea of not guilty and a motion in arrest of judgment, and we still maintain that in all cases of-robbery it must appear either from the language of the information. or the plea of the defendant that the property taken is not the property of the defendant.”. If the information charged no offense it could not be plead in .bar of a subsequent prosecution. (State v. Brown, 47 O. St., 102.) The [79]*79statute of Arkansas is in substantially the same language as óurs, and the supreme court of that state held an indictment for robbery insufficient in failing to allege the ownership of the money charged to have been taken. The court said: “That allegation is found in all the common law precedents of indictments for robbery, and we have been unable to find any adjudged case in which it has been dispensed with under a statute similar to ours.” (Bales v. State, 58 Ark., 35, and cases cited in the opinion.) It is stated in 18 Enc. P. & P., 1233: “It is very generally held that a conviction for larceny may be had upon an indictment for robbery”; and authorities from many states are cited in support of the text. Without extending this opinion by further quotations from decisions we deem it sufficient to cite the following cases in each of which it is directly held that an indictment or information for robbery is fatally defective which fails to allege the ownership of the property alleged- to have -been taken. (State v. Dengal, 24 Wash., 49; State v. Morgan, 31 Wash., 226 (71 Pac., 723); Smedley v. State, 30 Tex., 214; State v. Lawler, 130 Mo., 366; Commonwealth v. Clifford, 8 Cush. (62 Mass.), 215.) We have found the contrary held in but two states (Oregon and Tennessee). In State v. Dilley, 15 Ore., 70, the indictment followed the form prescribed by statute for an indictment for robbery, and the court said that the statute provided in express terms what should be a sufficient statement in an indictment for robbery, being armed with a dangerous weapon, and it was upon that ground alone that the indictment was held to be sufficient, while admitting that but for the statute it would have been defective. In Clemons v. State, 92 Tenn., 282, the indictment was held sufficient being in the language of the statute, and cites State v. Swofford, 3 Lea (Tenn.), 162, but no other authority in support of the decision. In the lattér case the ownership of the property was alleged to be in the person robbed.
It is contended that as the information in the ease at bar charges a felonious taking, that implies a taking of [80]*80the property of another than-the defendant and for that reason .the information should be held sufficient. We think this contention cannot be sustained. The crime of robbery under the statute is a felony and it is proper, if not necessary, to so charge it; and the word feloniously as used in the information characterizes the acts charged in the information as being done with a criminal intent, but cannot be taken as a substitute for or to supply the place of an allegation of a fact which is an essential element to constitute the offense. Indeed, in most of the cases above cited the indictment or information contained the word “feloniously.” Substantially the same question was presented in State v. Wasson, supra. And in State v. Morgan, supra, it is said: “The words ‘did feloniously steal and take/ are no more effective to charge ownership of property 'than the words ‘did feloniously talced ” Nor is it sufficient in all cases to charge the offense in the language of the statute. To be sufficient, “the words of the statute must fully, directly, and expressly, without any uncertainty or ambiguity, set forth all of the elecents necessary to constitute the offense intended to be punished, and must state all the material facts and circumstances embraced in the definition of the offense. Ingredients which do not enter into the statutory definition must be added.” (22 Cyc., 340, and authorities cited in notes.)
We need notice but one other point contended for by counsel for defendant in error, viz.: that this objection to the information was waived by a failure to move to quash. This contention can only be based upon the fact that the information is defective. For, if, as contended, it is sufficient, to charge the offense in the language of the statute, which-includes the word “feloniously,” then there is no defect in the information either in substance, form or in the manner in which the offense is charged, and nothing upon which a motion to quash could be based. ■ But as we think the information is fatally defective in substance, .and that the facts therein stated do not constitute an offense, the objection [81]*81could be made and the question raised by motion in arrest of judgment. (Sec. 5418, R. S. 1899.)
In United States v. McNemara, 26 Fed Cases, No. 15701, an indictment for forcibly taking bank-notes from another,- the court on motion arrested the judgment because it was not stated in the indictment, whose property the bank-notes were. And in State ex rel. Conway v. Blake, 5 Wyo., 107, at 123 this court said: “-The only matter which has not been passed upon herein raised on the motion for arrest.of -judgment-is the sufficiency of the indictment. No claim was made upon the argument or in the brief that the indictment does not charge an offense, and an examination of it convinces us that it is good and would support a conviction of murder in any degree.” Thus clearly' indi-, eating that the sufficiency of the indictment to charge an offense may be raised by a motion in arrest. (See also Benjamin v. State, 121 Ala., 26; U. S. v. Hannon, 45 Fed., 414; Strickland v. State, 19 Tex. App., 518.)
Under our code of criminal procedure the defendant may demur to the information when- the facts therein stated do not constitute an offense, hut he does not waive that object tion by a failure to do so, and may raise that question for the first time by motion in arrest. That is not, however, one of the grounds for a motion to-quash, and we think it was not intended that a defect which the statute says may be taken advantage of by demurrer or motion in arrest, may also be taken by motion to quash. The motion to quash reaches defects in the form of the information, and in the manner in which the offense is charged, but does not reach the substance. If the facts stated constitute, an offense, but are imperfectly stated, a motion to quash is the proper remedy;' but if the facts stated do not constitute an offense, it should be challenged by demurrer or it may -be done by motion in arrest. Otherwise the provision of the statute authorizing a demurrer or motion in arrest on that ground would be superfluous. If a general demurrer to the inforr mation in this case should have been sustained, then it [82]*82seems clear that the motion in arrest on the ground that the facts stated in the information do not constitue an offense should have been sustained. In McCarthy v. Territory, 1 Wyo., 313, a general demurrer was interposed to ah indictment which was overruled and the defendant was tried and convicted, and after motions for a new trial and in arrest of judgment, the defendant was sentenced. On appeal the indictment was held bad for uncertainty and indefiniteness in not setting out the facts constituting the offense. It is there stated (p. 315) that “the general rule relating to indictments is, that they should set out affirmatively sufficient to constitute in themselves allegations to make out the offense charged, and leave nothing to be supplied by inference or proof.” In the case at bar there is no direct allegation of the ownership of the property alleged to have been taken, but that fact — an essential element to constitute the offense — is left entirely to inference or to be supplied by proof. An examination of the statutes under which the decision in the McCarthy case was rendered discloses that the grounds for a motion to quash, plea in abatement and demurrer were the same as at present; and also provided, as does our present statute, that “the accused shall he taken to have waived all defects which may be excepted to by a motion to quash, or plea in abatement, by demurring to an indictment, or by pleading in bar or not guilty.” (Secs. 100, 101, 102, 103 and 105, p. 484, Raws of Wyoming 1869.) That case appears to be decisive of the question "now under consideration. The statute having provided for what causes a demurrer or motion in arrest will lie, excluded the idea that such objections should be otherwise raised. (State v. Baugham, 111 Ia., 71; State v. Tough, 12 N. Dak., 425.) The present case differs from Wilber v. Territory, 3 Wyo., 268. There the charge was larceny as bailee, and it was alleged that the defendant was the bailee of the goods; but the facts constituting the bailment were not stated.
The effect of sustaining a motion in arrest of judgment is clearly defined in the statute. (Sec. 5420, R. S. 1899.) [83]*83It does not necessarily discharge the defendant, .but if from the evidence on the trial there shall- be sufficient reason to believe him guilty of an offense the court * shall order him to enter into a recognizance to appear at the first day of the next term of the court. The information being fatally defective in failing to allege the ownership of the money-alleged to -have been taken did not state facts constituting an offense. The district court, therefore,, erred in denying the motion in arrest of judgment; and for that error, the judgment is reversed and the case remanded to the district court with directions to set aside and vacate the judgment heretofore entered, to sustain, the motion in arrest of judgment, and for further proceedings according to law.
Reversed and remanded.
Scott, J., concurs. •
Potter, C. J., dissents.