Clements v. State

• Decision Date: 12 March 1890
• Citation: 11 S.E. 505,84 Ga. 660
• Parties: CLEMENTS et al. v. STATE.
• Court: Georgia Supreme Court

11 S.E. 505

84 Ga. 660

CLEMENTS et al. v. STATE.

Supreme Court of Georgia

March 12, 1890

Error from superior court, Coffee county; ATKINSON, Judge.

S. W Hitch and J. H. Lumpkin, for plaintiffs in error.

W. G Brantley and D. H. Rountree, for the State.

SIMMONS J.

1. William and Charles Clements were indicted, tried, and convicted of robbery. They made a motion for a new trial upon several grounds, which was overruled by the court, and they excepted. The evidence as to the robbery was, in substance as follows: Between 7 and 8 o'clock on the evening of January 19, 1888, Bird went into his smokehouse to weigh out rations for his hands. While he was in there, a man ran up and said that the first one who put his head out he would shoot it off; said they were after a murderer that had killed four men in Dooly county, and were told he was there. Bird asked what was his name, and the man said he did not know, but the sheriff did, and that the place was surrounded. Bird looked through the crack, the room being built of logs, and the man was standing with his face towards Bird, who could not tell anything about him, only he was a stout man, and he stood in a shooting position. After a little while the man disappeared,--"kinder backed off," -- and Bird waited until he thought it was time for a man to come from anywhere around in 50 or 60 yards, and he did not come; and Bird said, "I am going out, if you do shoot;" and went out. When he got to the back door, he met his wife coming in from the kitchen, and she asked him if he knew his chest was gone, and he told her, "No." Before that man came up, a gun was fired off. The chest was right under the bed, which stood at the front door of Bird's dwelling-house. There was a piazza running along by the front door, and the chest had been taken out by that door. The smoke-house was "sorter back" of that house. The bed was from one and a half to two feet from the front piazza. The chest could have been seen under the bedstead. It was under the bed when Bird went to the smoke-house. It contained, before it was broken open, several hundred dollars in currency, and deeds, and papers. He was alarmed or dazed by the statement made while he was in the smoke-house, by the man on the outside, who was standing within eight feet with his gun in a shooting position, so he could not put his head out. The smoke-house was about 15 steps from the dwelling-house. Nobody said anything to him about taking his money, and nobody took anything from his person. The chest was not very heavy. It was about 18 inches long, and about 14 inches high. It was generally known that he kept his valuables in that chest. There was other evidence tending to show that the plaintiffs in error were the guilty parties, but it is unnecessary to detail it here, as the main question is whether, under the facts above set out, the offense was robbery.

Under the above stated facts, the court charged the jury as complained of in the third and fourth grounds of the motion for a new trial, which is alleged by the plaintiffs in error to be erroneous. These grounds are as follows: "(3) Because the court erred in the following charge to the jury 'In order to convict these defendants, it must appear that the goods alleged to have been taken were taken from the person of the owner. By this you are not to understand that the goods must have been in the hands of or attached to the person of the owner. All his property, so far as cases of this character are concerned, is, in contemplation of law, upon the person of the owner, which is, at the time of taking, in the immediate presence of the owner, or is so near at hand, or stored in such position, that, at the time of taking, it is under the immediate personal protection of the owner. If the goods are in that condition, then they are, within the contemplation of law, upon the person of the owner.' (4) Because the court gave the following charge: 'That goods stored in the dwelling-house are deemed to be upon the person of the owner, in contemplation of law, so far as cases of this character are concerned, when the owner thereof is either personally therein,--that...