Fleming v. Commonwealth

• Decision Date: 28 April 1938
• Parties: JOHN FLEMING v. COMMONWEALTH OF VIRGINIA.
• Court: Virginia Supreme Court

Page 636

170 Va. 636

JOHN FLEMING v. COMMONWEALTH OF VIRGINIA.

Supreme Court of Virginia, Richmond.

April 28, 1938.

Present, All the Justices.

1. ROBBERY — All Elements Essential at Common Law Must Exist. — To constitute the crime of robbery in Virginia, all of the elements essential at common law must exist.

2. ROBBERY — Essential Elements. — To constitute the offense of robbery, there must be, first, an act of violence, but it need only be slight, for anything which calls out resistance is sufficient, or there must be such demonstrations as to put the person robbed in fear. The demonstrations or fear must be of a physical nature, with the single exception that, if one parts with his goods through fear of a threatened charge of sodomy, the taking is robbery. There must be, second, a larceny, embracing the same elements as a simple larceny, and, third, the taking must be from what is technically called the "person," the meaning of which expression is, not that it must necessarily be from the actual contact of the person, but it is sufficient if it is from the personal protection and presence.

3. ROBBERY — Evidence — Sufficiency to Sustain Conviction — Case at Bar. — In the instant case, a prosecution for robbery, the evidence showed that accused struck a boy 16 years old and took from him a gun and mining lamp, and some frogs that the boy had caught; that he made the boy get into a car and drove off with him; and that accused refused to halt when commanded to do so by officers of the law, but drove rapidly away and was caught only after a chase. Accused assigned as error the refusal of the trial court to set aside the verdict because the same was contrary to the law and the evidence and without evidence to support it.

Held: That the evidence met every element of the crime of common-law robbery.

4. ROBBERY — Verdict — Conviction of Lesser Offense — Case at Bar. — In the instant case, a prosecution for robbery, accused contended that the verdict was inconsistent with the indictment, because the punishment, under accused's interpretation of the evidence, ought to have been eight years confinement in the penitentiary rather than five, and the verdict being for the latter period acquitted the accused of the only offense established by the evidence and the only offense charged in the indictment.

Held: That there was no merit in accused's contention.

5. CRIMINAL LAW — Conviction of Lesser Offense under Evidence Sufficient to Sustain Conviction of Felony. — Evidence which is sufficient to sustain a conviction of a felony charged in an indictment is alike sufficient to sustain a conviction of a lesser offense substantially charged in the indictment.

Error to a judgment of the Circuit Court of Dickenson county. Hon. Alfred A. Skeen, judge presiding.

The opinion states the case.

D. F. Kennedy, for the plaintiff in error.

Abram P. Staples, Attorney-General, and Joseph L. Kelly, Jr., Special Assistant, for the Commonwealth.

BROWNING, J., delivered the opinion of the court.

John Fleming, the plaintiff in error, was indicted on the charge of feloniously striking and assaulting Ralph Mullens and putting him in bodily fear and stealing, taking and carrying away from his person and against his will certain specific goods and chattels. Upon the trial of this indictment Fleming was found guilty by the jury and his punishment was fixed at confinement in the penitentiary for a period of five years. The verdict was confirmed by the trial court.

The petition for a writ of error contains this statement: "The only assignment of error relied upon by petitioner is that the trial court refused to set aside the verdict of the jury because the same `is contrary to the law and the evidence and without evidence to support it.'"

The evidence discloses that the accused and a man named Willis were driving near the town of Clincho, near McClure river, about ten o'clock at night in the month of May, 1937; that they noticed two boys on the bank of the river with a light. These boys were Ralph Mullens, sixteen years old, and James Linkous, twelve years old. They had a mining lamp and a twenty-two-caliber rifle and were hunting frogs. The accused called to them and asked them what they were doing fishing, saying that he and his companion were game wardens and would have to arrest them and told them to...