State v. Sommers

12 Mo. App. 374, 1882 Mo. App. LEXIS 55

• Court: Missouri Court of Appeals
• Decided: June 13, 1882
• Status: Published

Opinion

Bakewell, J.,

delivered the opinion of the court.

Defendant was indicted for stealing $450. The testimony showed that he attempted to snatch from the hands of a girl who was carrying the same through an unfrequented street, a bag containing that amount in silver and bank-notes. The court directed the jury to acquit of grand larceny ; but if they believed from the evidence that defendant did, at the date named and at the place named, feloniously attempt to steal, take, and carry away from the daughter of Frederick Kurst the money of said Kurst in a sum in excess of $30, and did so with intent to convert the same to his own use and to deprive the true owner of it without his consent, they should find defendant guilty of the crime of an attempt to commit the crime of grand larceny.

Counsel for appellant contends that there was no evidence to warrant this instruction, because, he says, the evidence shows an attempt to commit robbery, and does not show an attempt to commit larcency. If this were so we think there is nothing in it; because robbery and larceny are, in their nature, felonious offences óf the same general kind. Robbery is larceny with something added. One indicted of robbery might, if the evidence justified it, have been acquitted of the robbery and convicted of the larceny, on this ground. Rex v. Gnosil, 11 Eng. C. L. 400. The charge of robbery involves the charge of larceny; and if an act is done with an intent to commit robbery, it must be done with an intent to commit the larceny involved in the robbery. So, an indictment for burglary by feloniously breaking and entering into the dwelling-house of the prosecutor with intent to steal his goods, is supported by proof that the intent of the prisoner was to rob the prosecutor. The State v. Cody, 1 Wins. 197; 1 Bishop’s Cr. Proc., sect. 488 e.

We are of opinion, moreover, that there was evidence from which the jury might fairly find an attempt to steal as distinguished from an attempt to rob. To constitute robbery the party must be put in fear or there must be violence. It may be difficult to determine what degree of violence is necessary to constitute the offence. Where &. naan walking after a woman in the street, snatches her shawl from her person, though he uses considerable violence, it is said this is not robbery; and so, where a person snatched another’s watch from his fob, and got it after a scuffle. Rex v. Gnosil, supra. And this, for the reason that where the violence is used, not to overpower the person robbed, but only to get the property, there is no robbery. At any rate it seems to be now held that sudden snatching of property from a person is not robbery, if there is no struggle and no injury done to the person robbed. The'cases are cited in a note to Rex v. Gnosil, supra. In the case at bar the evidence of the girl tends to-show an attempt to snatch her money-bag, abandoned as soon as she screamed for help. No harm was done to her person.

No other point is urged here as a reason for reversing the judgment. Nor, on inspection of the record, do we-see any error to the prejudice of appellant for which we ought to interfere.

With the concurrence of all the judges,, the judgment is affirmed.