Schanz v. State

By the Court, Cole, J. There can be no doubt whatever that the indictment in this case charges the offense of larceny [252] by stealing from, the person of another, and is found under sec. 15, chap. 165, R. S. It charges, in effect, that the plain • tiff in error feloniously stole, took and carried away from the person of one .Nicholas Sebastian the bank notes which are particularly described in the indictment. The counsel for the plaintiff in error contends that it is impossible to tell whether the indictment is found under that section, or whether it is found under section 34, chap. 164, or some one of the three subsequent sections of that chapter. To our minds it is very clear that the indictment does not attempt to describe an offense of robbery by a person armed. That is the offense named in the 34th section. Nor does the indictment charge an assault with intent to rob by a person armed, which is the offense named in the 35th section. • Equally plain is it that the indictment does not contain the allegations necessary to describe an offense under either the 36th or 37th section. Indeed, as already remarked, it is very apparent that the indictment is on section 15, chap. 165. And it contains all the allegations essential to describe an offense under that section. Because the formal words are used that “with force and arms” Sehanz felo-niously stole, &c., from the person of another, the counsel insists that the pleader must have intended to describe the offense named in section 36, chap. 164. But the use of these words clearly does not make the offense robbery by a person not being armed. The distinction between the offenses named in section 36, chap. 164, and section 15, chap. 165, is so marked that they cannot readily be confounded. And they are certainly not confounded in this indictment. There are no circumstances of force and violence, or of an assault and putting in fear, which constitute robbery. Again, it is said that the indictment does not charge Sehanz with stealing “money.” It charges him with stealing various bank notes, the denomination and value of which are stated. It seems to us that the indictment is good in this respect. [253] This disposes of all the material objections taken to the indictment. The judgment of the municipal court is affirmed.