Croft v. State

• Decision Date: 02 January 1935
• Citation: 158 So. 454,117 Fla. 832
• Parties: CROFT v. STATE.
• Court: Florida Supreme Court

158 So. 454

117 Fla. 832

CROFT v. STATE.

Florida Supreme Court, Division B.

January 2, 1935

Error to Circuit Court, Osceola County; Frank A. Smith, Judge.

Elbert Croft was convicted of robbery while armed with a dangerous weapon and with intent to kill or maim the person robbed if resisted, and he brings error.

Reversed.

See also, 109 Fla. 188, 146 So. 649.

COUNSEL Whitaker Brothers, of Tampa, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BUFORD Justice.

The writ of error here brings for review the judgment of the circuit court in and for Osceola county, Fla against the plaintiff in error wherein he was convicted of the offense of robbery while being armed with a dangerous weapon and then and there having the intent to kill or maim the person robbed, if resisted.

Plaintiff in error presents several assignments of error. We shall discuss only one.

It is contended that the court erred in charging the jury of its own volition as follows:

'Robbery is defined as the felonious taking of money or goods of value from the person of another, or in his presence against his will, by violence or putting him in fear. It is necessary to prove that any goods or money taken is of some value. It is essentially an element of the offense of robbery that the property be taken from its possessor by violence or by putting in fear.'

'Now 'possession' need not be the owner. It is sufficient if he is the custodian--if it was his property, or if it was the property of which he was in lawful custody.

'The force by means of which robbery is committed may be divided into two classes--actual force and constructive force. Under actual force is included all violence inflicted directly on the person robbed. Under constructive force it is meant demonstrations of force and means by which the person robbed is put in fear sufficient to suspend free exercise of the will to prevent resistance to the taking.

'The intimidation or putting in fear is that constructive violence which constitutes robbery. It means in dealing in cases of robbery, not actual, and directed to such as is exerted upon the person robbed by operation upon his fears. No matter how slight the cause of creating the fear may be, nor by what other circumstances the taking may be accomplished, if the person be attended with such circumstances of terror threatening by word or gesture, as in common experience are likely to create an apprehension of danger, and to induce a man to part with the property for the safety of his person, he is said to be put in fear.'

Now the indictment in this case charged 'that Elbert Croft and another person, the name of such other person being to the grand jurors unknown, late of the County of Osceola aforesaid, in the circuit and state aforesaid, laborers on the 21st day of March in the year of Our Lord One Thousand Nine Hundred and Thirty-four, with force and arms, at and in the county of Osceola aforesaid, in and upon one P. E. Kirkpatrick alias P. E. Kirkpatrick as cashier of The Citizen's State Bank, an assault did make and him the said P. E. Kirkpatrick alias P. E. Kirkpatrick as cashier of The Citizen's State Bank, in bodily fear and danger of his life did then and there feloniously put, and nine thousand three hundred and one dollars and fifty-seven cents ($9,301.57), a better description of which is to the grand jurors unknown, lawful money of the United States of America, of the value of nine thousand three hundred and one dollars and fifty-seven cents ($9,301.57), and one Smith and Wesson 38 caliber revolver of the value of thirty dollars ($30.00), all being the property of, The Citizen's State Bank, a Florida banking corporation, from the custody and against the will of the said P. E. Kirkpatrick alias P. E. Kirkpatrick as cashier of The Citizen's State Bank, then and there by force and violence did feloniously rob, steal, take and carry away the said Elbert Croft and the other person, the name of whom being to the grand jurors unknown, being then and there armed with dangerous weapons, to-wit pistols, with intent if then and there resisted by the said P. E. Kirkpatrick, alias P. E. Kirkpatrick as cashier of, The Citizen's State Bank, him, the said P. E. Kirkpatrick, alias P. E. Kirkpatrick as cashier of, The Citizen's State Bank, then and there to kill or maim.'

The statute under which this indictment is drawn, section 5055, Rev. Gen. St., section 7157, Comp. Gen. Laws, as amended by Acts 1929, c. 13792, provides:

'Whoever assaults another and feloniously robs, steals and takes from his person or custody, money or other property which may be the subject to larceny, such robber being armed with a dangerous weapon, with the intent if resisted to kill or maim the person robbed, or, being so armed, wound or strike the person robbed, shall be punished by imprisonment in the State Prison for a term of years or for life imprisonment in the State Prison in the discretion of the Court for and during a term of his natural life.'

The indictment here charged the essentials of the crime under this section of the statute, that is that the accused assaulted P. E. Kirkpatrick and did rob, steal, and take from the custody of the said Kirkpatrick money which was the subject of larceny; that the accused was then and there armed with a dangerous weapon, to wit, a pistol; and that...