Burdette v. Com.

• Court: Kentucky Court of Appeals
• Writing for the Court: REES, Justice.
• Citation: Burdette v. Com., 78 S.W.2d 13, 257 Ky. 323 (Ky. Ct. App. 1935)
• Decision Date: 15 January 1935
• Parties: BURDETTE v. COMMONWEALTH.

78 S.W.2d 13

257 Ky. 323

BURDETTE v. COMMONWEALTH.

Court of Appeals of Kentucky

January 15, 1935

Appeal from Circuit Court, Adair County.

Gladys Burdette was convicted of robbery, and she appeals.

Affirmed.

O. B Bertram, of Campbellsville, for appellant.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for the Commonwealth.

REES Justice.

The appellant, Gladys Burdette, was jointly indicted with John Violet for the crime of robbery, and on her trial was convicted and sentenced to a term of two years in the penitentiary. Before she was arrested, John Violet was killed while engaged in the commission of a robbery in Louisville Ky.

On March 15, 1934, appellant and Violet went to the place of business of the Columbia Motor Company in Columbia, Adair county, Ky. and stated that they wanted to look at a used car. Mr. Lewis Coffey, manager of the company, told them that he did not have a used car, but he showed them a new car. They left without purchasing the car, but Violet stated that they would probably return later in the afternoon. They did return about 4 o'clock, and asked Coffey to drive them to the stockyards where Violet claimed he had parked his car. Believing they were prospective customers, Coffey requested appellant to take the driver's seat and he sat beside her. Violet sat on the rear seat. When they reached the stockyards, Violet drew a pistol, placed it against Coffey's side, and told him to keep quiet. Coffey reached for the car horn and began blowing it, whereupon Violet struck him over the head with the pistol and then pushed his head under the cowl of the car, and forced him to ride in this position until they reached a lonely spot in the country, where he was compelled to get in the rear of the car and lie down. Appellant continued to drive the car, and at a point in Taylor county Coffey was left on the road after Violet had robbed him of the money on his person. The car was found about ten days later in Louisville, and appellant was arrested.

It is first insisted that the demurrer to the indictment should have been sustained because it is not alleged that the taking was without the consent or against the will of the owner of the property. The indictment charges that the accused "did unlawfully, willfully, and feloniously, with force and arms take, steal, and carry away from Lewis Coffey one Chevrolet coupe automobile with the intent to convert same to their own use and to permanently deprive it of the ownership thereof by putting the said Lewis Coffey in fear, the said Lewis Coffey then and there being a member of the Columbia Motor Company and the said automobile being then and there the personal property of the Columbia Motor Company." The taking of the property against the will of the owner is an essential element of the crime of robbery, and there must be allegations in the indictment which negative the idea of consent or acquiescence, for obviously no person can be robbed when he consents to or acquiesces in the taking of his property. However, it is not necessary to use the fixed phrase "against the will" of the person said to be robbed if the idea is otherwise conveyed. Here the indictment alleges that the accused did unlawfully, willfully, and feloniously, with force and arms, steal from Lewis Coffey an automobile by putting the said Coffey in fear. These words imply that the automobile was taken against the will of Coffey, and it was not necessary to...