Holland v. Statu

• Decision Date: 06 September 1910
• Docket Number: (No. 2,433.)
• Citation: 68 S.E. 861,8 Ga.App. 202
• Parties: HOLLAND v. STATU.
• Court: Georgia Court of Appeals

68 S.E. 861

8 Ga.App. 202

HOLLAND

v.STATU.

(No. 2, 433.)

Court of Appeals of Georgia.

Sept. 6, 1910.

(Syllabus by the Court.)

1. Robbery (§ 17^*)—Indictment— Sufficiency—"Fraudulently. ' '

There was no error in overruling the. demurrer. An indictment for robbery, which alleges that the accused "did unlawfully, and with force and arms, wrongfully, fraudulently, and violently take from the person of Bob White ten dollars, the property of the said White, without the consent of the owner by force and intimidation, " etc., clearly and sufficiently charges the offense of robbery. The charge is substantially in the language of section 151 of the Penal Code of 1895, defining the offense. The word "fraudulently, " in the connection in which it is used, implies an intent to steal.

[Ed. Note.—For other cases, see Robbery, Cent. Dig. §§ 16-23, 26; Dec. Dig. § 17.*

For other definitions, see Words and Phrases, vol. 3, pp. 2955-2957.]

2. Robbery (§ 24*)—Evidence.

The evidence authorized the conviction of the defendant, and there was no error in refusing a new trial.

[Ed. Note.—For other cases, see Robbery, Cent. Dig. §§ 32-36; Dec. Dig. § 24.*]

Error from Superior Court, Whitfield County; A. W. Fite, Judge.

Charles Holland was convicted of robbery, and brings error. Affirmed.

Geo. G. Glenn, for plaintiff in error.

T. C. Milner, Sol. Gen., and Geo. W. Stevens, for the State..

RUSSELL, J. There was no merit in the demurrer, to the overruling of which defendant excepted pendente lite. The presentment was against five defendants, and charged the offense of robbery, alleging that the defendants "did then and there unlawfully, and with force and arms, wrongfully, fraudulently, and violently take from the person of Bob White ten dollars, the property of the said Bob White, without the consent of the owner by force and intimidation, contrary to the laws of said state, the good order, peace, and dignity thereof." The demurrer raised the point that the presentment was fatally defective, bcause it did not charge that the $10 was taken with intent to steal. As we have pointed out several times heretofore, the intent to steal is implied wherever a fraudulent taking of personal property of another is alleged; but, even if this be not true, the indictment was sufficiently technical under the provisions of section 929 of the Penal Code of 1895, because the charge was substantially and practically in the language of the section defining the offense of robbery. Id., § 151.

The facts in this case, briefly stated, are as follows: White, the prosecutor, killed a dog belonging to the defendant, Charles Holland, Sr. It is not necessary to state the circumstances under which the killing took place, because, according to the testimony for the state, the prosecutor might have been justified in supposing that the dog was mad, while, according to the defendant's view of the case, the dog was killed without justification. The defendant made a demand upon the prosecutor to pay for his dog almost immediately after the killing. When he made his demand, according to the testimony for the state, he was accompanied by four of his sons and a friend. Before coming to the point of a demand for payment, the defendant had made violent threats to the prosecutor, and challenged him to come into the street and shoot the matter out with him. It also appears that the defendant or one of his companions had just knocked on the head the person who told White that the dog was mad, and White knew this. White could not satisfy their demands otherwise than by instant payment of the $10 which the defendant demanded for his dog, although he protested against it. He had been overtaken on the street and was halted by the defendant, who had his pistol in hand and who raised the pistol and cocked it, and said: "We are going to have pay for our dog, or we arc going to settle with you." White told him that he did not have a cent, and asked him to come to...