Colby v. State

Decision Date20 October 1903
Citation46 Fla. 112,35 So. 189
PartiesCOLBY v. STATE.
CourtFlorida Supreme Court

Error to Criminal Court of Record, Duval County; John L. Doggett Judge.

James C. Colby was convicted of robbery, and brings error. Reversed.

Syllabus by the Court


1. Where one stealthily filches loose property from the pocket of another, and no more force is used than such as may be necessary to remove the property from the pocket, such acts do not constitute robbery, under section 2398, Rev. St. 1892.

2. If one struggle with another in an effort to overpower him for the purpose of taking money from his pocket, there is sufficient force to constitute the taking robbery, under section 2398, Rev. St. 1892; but, if the object be to furtively abstract money from the other's pocket, and upon being detected, force is used only in an effort to escape or to avoid arrest, the offense is not robbery.

COUNSEL Pope & Pope, for plaintiff in error.

J. B Whitfield, Atty. Gen., for the State.



In January, 1903, plaintiff in error was convicted in the criminal court of record of Duval county upon an information charging him with an attempt to commit the crime of robbery. The information is somewhat inartificial, and its sufficiency was questioned by a motion in arrest of judgment, but the evidence being, in the opinion of the court, wholly insufficient to support the verdict, and not likely to be different upon another trial, and the question of its sufficiency being properly presented by the assignment of error based upon the ruling denying the motion for a new trial, it is not deemed essential to consider any other question.

From the evidence it appears that the alleged offense was committed on Thanksgiving night during Gala Week on November 27, 1902, in the city of Jacksonville, upon a street so crowded with people that one could not pass without coming in contact with others. Bousman, the prosecuting witness, testified that he and one Davidson were passing along this street, when their attention was attracted to a fight in the street, and a crowd rushing in that direction; that they were borne along with the crowd, and, while being pushed and jostled by the crowd, he and that he (Bousman) had $14.80 in his that he caught the arm or hand and held it, calling to Davidson, who was several feet away, that his pocket was being picked, and to come to his assistance; that Davidson came, and took hold of the defendant, whose hand was still in Bousman's pocket, and delivered him into the custody of a policeman; and that he (Bousman) had $14. 80 in his pocket in paper and silver money. Davidson testified that he was several feet away when Bousman called him, but could see Bousman and the defendant together; looked like they were clinched; and that Bousman had hold of the defendant.

The policeman testified that he heard Bousman calling out from the crowd for a policeman; that he saw Bousman clinched with the defendant, and they appeared to be tussling with each other. This constitutes all the testimony tending to show the defendant guilty of a criminal offense.

The court is of opinion that this testimony does not sustain the conviction had in this case. Had the defendant succeeded in securing the money in Bousman's pocket, the facts would not sustain a conviction for robbery. Our statute (section 2398, Rev. St. 1892) provides that 'whoever by force violence or assault, or putting in fear, feloniously robs, steals and takes...

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21 cases
  • Stokeling v. United States
    • United States
    • U.S. Supreme Court
    • 15 Enero 2019
    ...who attempts to pull free after the victim catches his arm. See Robinson, 692 So.2d, at 887, n. 10 (citing Colby v. State, 46 Fla. 112, 113, 35 So. 189, 190 (1903) ). Florida courts have held the same for a thief who pulls cash from a victim's hand by " ‘peel[ing] [his] fingers back,’ " reg......
  • the State v. Parker
    • United States
    • Missouri Supreme Court
    • 24 Noviembre 1914
    ...59 Mo. 319, and State v. Weinhardt, 253 Mo. 629. 34 Cyc. 1799; State v. Montgomery, 109 Mo. 645, 32 Am. St. 684; Colbey v. State, 46 Fla. 112, 110 Am. St. 87; Mahoney v. People, 3 Hun (N.Y.), 202; Comm. Davis, 23 Ky. L. Rep. 1717; People v. Klein, 113 Ill. 596; Smith v. State, 117 Ga. 320; ......
  • Royal v. State, s. 82-1050
    • United States
    • Florida District Court of Appeals
    • 19 Julio 1984 fear. See 34 Cyc. 1799. The violence or intimidation must precede or be contemporaneous with the taking of the property. See Colbey v. State, 46 Fla. 112, 35 South. 189, 110 Am.St.Rep. The degree of force used is immaterial. All the force that is required to make the offense a robbery is......
  • Robinson v. State
    • United States
    • Florida Supreme Court
    • 24 Abril 1997
    ... ... State, 342 So.2d 116, 117 (Fla. 3d DCA 1977); Adams v. State, 295 So.2d 114, 116 (Fla. 2d DCA), cert. denied, 305 So.2d 200 (Fla.1974); Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 8.11(d), at 781 (2d ed.1986)); see also Colby ... v. State, 46 Fla. 112, 113, 35 So. 189, 190 (1903); 10 Fla.Std. Jury Instr. (Crim.) 156-57. The snatching or grabbing of property without such resistance by the victim amounts to theft rather than robbery ...         Florida courts have consistently recognized that in snatching ... ...
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