Johnson v. Com.

• Decision Date: 14 October 1968
• Citation: 163 S.E.2d 570,209 Va. 291
• Court: Virginia Supreme Court
• Parties: Fred W. JOHNSON, alias, etc. v. COMMONWEALTH of Virginia.

Page 570

163 S.E.2d 570

209 Va. 291

Fred W. JOHNSON, alias, etc. v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Oct. 14, 1968.

James Woolls, Alexandria, for plaintiff in error.

A. R. Woodroof, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.

BUCHANAN, Justice.

On an indictment charging him with attempted robbery of a taxicab driver, Fred W. Johnson, alias Robert Hopkins, was found guilty by a jury which fixed his punishment at five years in the penitentiary and he was sentenced accordingly. He was granted a writ of error and here contends that the indictment did not sufficiently charge attempted robbery, that the evidence was not sufficient to support the verdict, and that the court erred in refusing one of his instructions.

The offense was alleged to have been committed on the night of June 30, 1963, but after the defendant was arraigned on the indictment on September 6, 1963, he escaped from custody and was not returned to the city of Alexandria until December 7, 1966. On his trial on February 16, 1967, the only witnesses who testified were the taxicab driver and the arresting officer. Their testimony was as follows:

About 10:45 p.m. on June 30, 1963, taxicab driver William G. Evans picked up defendant, as a fare, at the corner of Mt. Vernon avenue and Glebe road, in Alexandria. Defendant got into the back seat of the taxicab from the curb side (through the right rear door) but slid over behind the driver, which Evans said was unusual because 'a normal passenger would sit just as he got in the door.' Defendant asked to be taken to the Alexandria Skating Rink. Evans got the taxicab in the left turn lane and as he was making the turn he felt something sticking in his back and heard defendant say, 'Don't get excited.'

Evans did not know what the object sticking in his back was, but he said it was done with such force that he knew that an object was in his back. When he 'realized that this was happening,' he said, 'I thought that I would go over the curb to jar him up,' so he drove the taxicab off the left side of the road, over a curb and into a field. He then jumped from the taxicab and ran toward a telephone, but upon seeing defendant open the door of the taxicab and run, Evans returned to the cab and called the police by his radio.

After talking with Evans at the scene, Alexandria police officers Hall and Allen began cruising along the edge of a playground about a quarter of a mile from the corner of Mt. Vernon avenue and Glebe road in an unmarked car. As they were driving along they heard a voice say, 'I give up. Don't shoot.'

On orders from Hall defendant came out from a swampy area with his hands up. A search of his person disclosed in his hip pocket a revolver and pieces of cord in another pocket. These were filed an exhibits.

At police headquarters after Evans had identified defendant as the man he had picked up, defendant told Evans he was 'sorry he had done this.'

Officer Hall said the 'revolver' taken from defendant was a 'blank pistol,' the barrel of which was blocked.

Defendant first contends that the court erred in overruling his motion to quash the indictment which he says was insufficient to charge attempted robbery because no intent to rob was alleged.

The indictment, in pertinent part, charged that defendant, on June 30, 1963, 'feloniously and violently did make an assault upon * * * Evans by the presenting of firearms and other violence to the person and did then and there put * * * Evans in bodily fear and danger of his life, and * * * (defendant) did then and there feloniously and violently attempt to take, steal and carry away the goods and chattels of * * * Evans against the peace and dignity of the Commonwealth.'

The crime of robbery in Virginia is not defined by statute. Code § 18.1--91 fixes the punishments for robbery, but the definition of the crime is found in the common law. Robbery at common law is the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation. Pierce v. Commonwealth, 205 Va. 528, 532, 138 S.E.2d 28, 31; Mason v. Commonwealth, 200 Va. 253, 254, 105 S.E.2d 149, 150.

Likewise, while the punishments for attempts to commit felonies are fixed by statute, Code §§ 18.1--16 through 18.1--18, what constitutes an attempt must be ascertained from the common law. An attempt in criminal law is an unfinished crime and is composed of two elements, the intent to commit the crime and the doing of some direct act toward its consummation, but falling short of the accomplishment of the ultimate design. Martin v. Commonwealth, 195 Va. 1107, 1110--1111, 81 S.E.2d 574, 576, and cases there cited.

We said in Merritt v. Commonwealth, 164 Va. 653, 657, 180 S.E. 395, 397, that an indictment charging an attempt to commit a crime should charge both the intent and the overt act; but 'we have held that where the intent appeared as a part of the act alleged, it need not be expressly stated.' Citing Cunningham's Case (Cunningham v. Commonwealth) 88 Va. 37, 13 S.E. 309, and Broaddus v. Commonwealth, 126 Va. 733, 101 S.E. 321.

'In each of these, and other cases, it was held that the specific intent to commit the crime charged was sufficiently alleged and might be inferred, either from the nature of the act alleged or from the use of the word 'attempt' in the indictment, as 'attempt' embraces the full meaning of 'intent'; the only distinction between an 'intent' and an 'attempt' as used was that the former implies purpose only, while the latter implies both purpose and the effort to carry that purpose into effect.' 164 Va. at 657, 180 S.E. at 397.

The indictment in the present case charged an assault by defendant on Evans by firearms and other violence in an attempt to steal his goods and chattels by putting him in bodily fear and danger of his life. An attempt to steal from the person by putting the person in bodily fear and in danger of his life necessarily charges an intent to rob, just as in Broaddus, supra, a charge of assault and attempt to ravish charged an intent to rape.

However, defendant argues that the indictment in the present case alleges only an assault, as this court held the indictment did in Merritt v. Commonwealth, supra. In that case the indivtment charged that Merritt attempted to commit murder by feloniously and maliciously pointing a pistol at Trull, who was in shooting distance of the pistol. We said that even if the jury so believed, ...