State v. Brill

AILSHIE, J.,

Concurring. — I think the information in this ease is probably sufficient to charge defendant with the crime of robbery under the provisions of sec. 6590. (In re Myrtle, 2 Cal. App. 383, 84 Pac. 335.) This court has quite uniformly held that an indictment or information is sufficient if it charges the offense in the language of the statute. (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; State v. Neil, 13 Ida. 539, 90 Pac. 860, 91 Pac. 318; State v. Squires, 15 Ida. 547, 98 Pac. 413.) This is true, however, only as to the specific offense defined by the statute, and would not be true as to other and lesser offenses included within the crime so defined. There is no doubt but that robbery includes the crime of larceny. (24 Am. & Eng. Ency. of Law, 2d ed., 992; 34 Cyc. 1797; 2 Current Law, 1524-1526; People v. Chuey Ying Git, 100 Cal. 437, 34 Pac. 1080; People v. Nelson, 56 Cal. 77; People v. Jones, 53 Cal. 58; People v. Clary, 72 Cal. 59, 13 Pac. 77; State v. Rodgers, 21 Mont. 143, 53 Pac. 97; Reed v. State, 66 Neb. 184, 92 N. W. 321; People v. Church, 116 Cal. 300, 48 Pac. 125; State v. Taylor, 140 Iowa, 470, 118 N. W. 747.) Although the crime of robbery includes the crime of larceny, a jury would not be justified in returning a verdict against a defendant, finding him guilty of larceny where he is charged with robbery, unless the information is also sufficient in terms to charge the specific offense of larceny under see. 7045, as well as the crime of robbery, under sec. 6590.

It seems to me there can be no doubt as to the error in that part of the instruction which told the jury that it made no difference .as to the ownership of the property. I do not think a man could be held guilty of robbery under our statute for taking his own property from the person or presence of another, where he is legally entitled to the immediate possession thereof. Of bourse, if he used force or induced fear in procuring the possession of his own property, he would perhaps be guilty of some crime under our statute, but it would not be the crime of robbery.

Upon the whole record in this case, I agree with my associates that the appellant is undoubtedly guilty of the crime for which he has been convicted, and for that reason the judgment should be affirmed.