Cates v. State

• Citation: 21 Md.App. 363,320 A.2d 75
• Decision Date: 22 May 1974
• Docket Number: No. 686,686
• Parties: , 77 A.L.R.3d 1353 Robert Craven CATES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 363

21 Md.App. 363

320 A.2d 75, 77 A.L.R.3d 1353

Robert Craven CATES v. STATE of Maryland.

No. 686.

Court of Special Appeals of Maryland.

May 22, 1974.

Certiorari Denied July 25, 1974.

Thomas V. Miller, Jr., Clinton, for appellant.

George A. Eichhorn, III, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., for Prince George's County and Stephen C. Orenstein, Asst. State's Atty., for Prince George's County, on the brief, for appellee.

Argued before POWERS, GILBERT and LOWE, JJ.

GILBERT, Judge.

The basic question presented by this appeal is whether an individual who has lost money in a 'crap game' and who, by the use of a weapon, takes the money from the person to whom it has been 'lost', can be successfully prosecuted for robbery with a dangerous and deadly weapon.

Robert Craven Cates, appellant, much to his later chagrin, invited an Air Force sergeant to participate in a game of 'craps'. The sergeant testified 'I gamble well. . . . It is not a matter of how good you shoot dice. It is how you place your bets. . . .' The sergeant was apparently a man of his word because he placed his bets well enough tht within a short period of time he had won approximately five hundred dollars of the appellant's money. Two days after the obvious mismatch, Cates, apparently ignorant of Md.Ann.Code art. 27, § 243, infra, resorted to self-help. Armed with a pistol he entered the Guys and Dolls pool hall, backed the sergeant against the pool room wall, demanded the return of his money from the sergeant and took all the money that the sergeant had, one hundred eighty dollars. Cates then 'juped' ¹ the sergeant and departed. The police arrested Cates shortly after the incident. He was convicted in the Circuit Court for Prince George's County, by Judge James H. Taylor, at a non-jury trial of robbery with a deadly weapon, assault and battery, carrying a hand gun and the use of a hand gun in the commission of a crime of violence. Cates received varying sentences all of which are to be served concurrently, and the total effect of which is that the appellant has been sentenced to be incarcerated for a period of five years.

In this Court the appellant contends:

(1) that the trial judge 'erred in refusing to recognize the majority and growing body of law which holds that the element of felonious intent, essential in the crime of robbery, is lacking where one seeks the redemption of money lost by him at an illegal game.'

(2) inasmuch as the appellant cannot be guilty of robbery, a crime of violence, he cannot be convicted of the use of a hand gun within the meaning of Md.Ann.Code art. 27, § 36B(d).

(3) that the assault and battery charge merged with the armed robbery conviction.

I.

Robbery is a crime in this State under the Common Law. ² It has been defined as '. . . the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence, or by putting him in fear.' Clark and Marshall, A Treatise on the Law of Crimes § 12.09 (6th ed. Wingersky rev. 1958). Darby v. State, 3 Md.App. 407, 239 A.2d 584 (1968). See also State v. Gover, 267 Md. 602, 298 A.2d 378 (1973), aff'g Gover v. State, 15 Md.App. 163, 289 A.2d 601 (1972); Phenious v. State, 11 Md.App. 385, 274 A.2d 658 (1971); Williams v. State, 7 Md.App. 683, 256 A.2d 776 (1969); Tyler v. State, 5 Md.App. 158, 245 A.2d 592 (1968). Robbery with a dangerous or deadly weapon is the offense of common law robbery aggravated by the use of a dangerous or deadly weapon and is not a new substantive crime. Darby v. State, supra.

In State v. Gover, supra, the Court of Appeals speaking through Judge Digges said, at 606, 298 A.2d at 381:

'It is clear that there can be no robbery without a larcenous intent. Midgett v. State, 216 Md. 26, 139 A.2d 209 (1958). Therefore, as larceny is an ingredient of robbery, we look to the components of the former to ascertain the requisite mental element of the latter. Larceny is the fraudulent taking and carrying away of a thing without claim of right with the intention of converting it to a use other than that of the owner without his consent. Brown v. State, 236 Md. 505, 204 A.2d 532 (1964); Fletcher v. State, 231 Md. 190, 189 A.2d 641 (1963); Putinski v. State, 223 Md. 1, 161 A.2d 117 (1960). Because an intent to steal, the animus furandi, must be present, it follows that larceny, and therefore robbery, is classed as a specific intent crime. This is true not only in this (S)tate but also in the majority of our sister jurisdictions.'

The holding in Gover, supra, makes it crystal clear that absent the animus furandi there cannot be a robbery, but whether the amicus furandi exists is a question of fact for the trier of fact to determine.

2 Wharton's Criminal Law and Procedure § 551 (Anderson ed. 1957) states 'In most jurisdictions, in accordance with the view that one cannot be guilty of robbery in forcibly taking his own property or property to the possession of which he honestly believes himself to be entitled, the courts have declared that it is not robbery for one who has lost money at gambling to compel by force or threats the return of the money lost, although the act may be punishable as an unlawful assault or trespass. This conclusion is based either on the theory that a loser has a right to recoup his gambling losses, and consequently, a forcible retaking thereof is without the requisite felonious intent, or that, since gambling is illegal, ³ title to the money won at gambling does not pass to the winner, and therefore the loser is merely an owner retaking his own specific property.

When the right of the defendant to retake gambling losses is sustained it is immaterial that he does not retake the identical money which was won from him.' (Footnotes omitted).

For the statement that a person may forcibly take property which is his own or to the possession of which he honestly believes himself to be entitled, 2 Wharton, supra, refers to § 565, wherein it is stated:

'If the defendant had the right to possession of the property at the time when he took it from his victim, he is not guilty of robbery even though he used force to obtain the possession. To illustrate, a person who by force recovers his stolen property from the thief who took it is not guilty of robbery. In such case, the defendant is not guilty of robbery for the additional reason that in taking his own property he did not possess the animus furandi essential to robbery.

It is likewise held that a person cannot be guilty of robbery in forcibly taking property from the person or presence of another if he does so under a bona fide belief that he is the owner of such property or is entitled to the possession thereof, since such belief negatives the requisite animus furandi or intent to steal. Such a taking, if an offense at all, is one of a different character. But as to property in addition to that taken under a belief of right, liability for robbery attaches.'

Of interest also are Wharton's comments in § 563, where he says:

'The general rule is that it is essential, in order to constitute robbery, that the ownership and right of possession of the property taken be vested in some person or persons other than the taker. The owner of property may also be guilty of robbery when the right of possession is vested in another, since robbery is an aggravated form of larceny and larceny may be committed by the owner under such circumstances.

It is not necessary that the person from whom the property is taken be the owner thereof. It is sufficient that the victim had prior possession, without regard to whether he had title to or any interest or right in the property. The particular capacity in which he had possession or custody as representative of the owner is not material.

While the capacity of the victim is immaterial, it is essential that he have possession or custody, for by definition, goods cannot be taken from 'the person of another or in his presence' unless he has possession or custody of the goods. Since only the prior possession of the victim is required, the defendant may be guilty of robbery even though the victim had himself stolen the property from another person or the money stolen was the proceeds from the sale of property which had been stolen.'

We agree with Wharton's premise in § 551 that one cannot be guilty of robbery in forcibly taking his own property, but the conclusion stated does not follow that premise. Since one is entitled to use necessary force to take his own property, why should his act be punishable as an unlawful assault? No authority is given for the statement that because gambling is illegal, title to money won at gambling does not pass to the winner. Title to contraband, and to the money paid for the purchase of it, passes hundreds of times every day. The concluding statement in § 551 that it is immaterial that the defendant does not retake the identical money which was won from him is completely at odds with the statement that the loser, never having parted with title, still holds title.

We prefer Wharton's contrary statement, in § 563, that the capacity of the victim is immaterial, and that it is essential only that he have possession, without regard to whether he has title, and even though that possession resulted from stealing the property.

The phrase claim of right and the phrase honestly believes himself to be entitled, when applied to an intentional taking of property, must be given a limited and not a broad interpretation. They must be taken to require a legally recognizable right which can be successfully asserted in our courts. The intent to steal, the element of larceny which makes it and robbery specific intent crimes, must be evaluated objectively and not subjectively, and within the framework of rights and obligations given and imposed by the law.

Intent to steal was evaluated objectively and in the light of actual, not...