Johnson v. State

• Decision Date: 13 September 1923
• Docket Number: A-4063.
• Citation: 218 P. 179,24 Okla.Crim. 326
• Parties: JOHNSON ET AL. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

218 P. 179

24 Okla.Crim. 326

JOHNSON ET AL. v. STATE.

No. A-4063.

Court of Criminal Appeals of Oklahoma

September 13, 1923

Syllabus by the Court.

To constitute "robbery," the taking must in all cases be accompanied with a felonious intent, or animus furandi the intent must be to appropriate the property likewise as in larceny.

If a party bona fide believing that property in the personal possession of another belongs to him takes that property away from such person with menaces and violence, he commits no robbery, for there is no animus furandi.

The owner of property is not guilty of robbery in taking it from the person of the possessor, even though he obtains it by menaces and violence.

In all cases of this kind, the question whether the taking was with a felonious intent is one of fact for the jury.

Appeal from District Court, Adair County; E. B. Arnold, Judge.

F. T Johnson and others were convicted of robbery, and they appeal. Reversed and remanded, with directions to dismiss.

T. M McCombs, of Sallisaw, and Hunt & Bauchamp, of Grove, for plaintiffs in error.

George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.

DOYLE J.

The information in this case in substance charges that the defendants, C. P. Fine, Charity Fine, F. T. Johnson, Frank N. Gipson, Gus M. Gipson and Lee Gipson, did, in Adair county, on or about the 17th day of September, 1920, unlawfully, willfully, conjointly, and feloniously, with force and violence, and by putting in fear one Ethel Gooch, take from her person and presence $1,100 in lawful money, the personal property of the said Ethel Gooch, and a cashier's check for $5,000, issued by the Castle State Bank, of Castle, Okl., payable to Henry Gooch, and the personal property of Henry Gooch, with the felonious intent to permanently deprive the owners thereof and to convert the same to their own use. Upon the trial of the case the jury returned their verdict finding the defendants C. P. Fine and Charity Fine not guilty, and finding the defendants F. T. Johnson, Frank N. Gipson, Gus M. Gipson, and Lee Gipson guilty, leaving their punishment to be fixed by the court, and the court by its judgment sentenced each of said defendants to imprisonment in the penitentiary for the term of five years. To reverse the judgment they appeal.

The facts in this case are about as follows:

The defendants C. P. Fine and Charity Fine, his wife, an elderly couple, lived on a farm near Castle, in Okfuskee county, for about 30 years; the prosecuting witness in the case, Henry Gooch, being a brother of Mrs. Fine. Henry Gooch's mother died when he was quite young, and he was raised by Mr. and Mrs. Fine, who also had one child, Edwin Fine, who enlisted in the army in 1918. Mr. Fine had some money on deposit in a Castle bank, and in the early part of 1919 he withdrew the sum of $5,000. Mrs. Fine marked the bills by putting a cross on the 10's and a V on the 20's, and they hid the money about the place. That year Mr. Fine visited his son at an army camp in New Mexico, and later made another trip to Camp Dix, N. Y., to visit his son, and there the son died. On these trips he had a good portion of this money with him. The evidence tends to show that it was the fixed intention of Henry Gooch to take this money. On the 4th day of July, 1920, the money disappeared. Henry Gooch was seen on the porch of the Fine home that day, and Mr. and Mrs. Fine insisted that Gooch had stolen their money. They went to him and tried to get him to give it back to them, but he denied any knowledge of it. They also caused his arrest on this charge, but the evidence was held insufficient to warrant a conviction. Later on Mr. Fine and his wife met Johnson and the Gipson boys, appellants, in Tulsa, and they sent some of them to see Henry Gooch. They went and brought Gooch down to where the Fines were camped on the Verdigris river. At that time Henry Gooch admitted to Mr. and Mrs. Fine and to these appellants that he had taken their money, and he promised to repay it and gave them a check for a portion of it. Before the check was cashed, payment on the same was stopped.

The evidence further tends to show that Mr. and Mrs. Fine in good faith believing that Gooch and Ethel, his wife, had their money, and, believing that any public effort that might be made to obtain the same would only cause the Gooches to hide it where it could not be found, secured the as sistance of these appellants. They all camped about a mile from Gooch's house, and the next morning they went to Gooch's residence. Ethel Gooch tells the story of the alleged robbery as follows:

"Mrs. Fine approached the front door, and said, 'Open the door; I came after our money, and I am going to get it.' Then she jerked the screen door loose, and entered the house. Some of the others came in. They rushed to Henry, and Mrs. Fine ran to me, and demanded that I give her their money. I told her that we did not have their money, and she said I had it, and she was going to get it; 'if not we will kill you.' I had the money in my skirt pocket, and she jerked the pocket off, and took the money off of me. I had well on to $1,100, and a certificate of deposit for $5,000, payable to my husband. The money they took belonged to me; I had it two years. I let her have the money because she threatened to kill me. They also took my husband's pistol."

On the part of the defense, Charity Fine testified:

"I demanded my money that Henry Gooch had stolen, and he told Ethel Gooch to give it to me, and she did. It was my money that she gave me; every bill was mine, for I went to the window and found the marks I put on it over a year ago. When I went in the house

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