Jones v. Commonwealth

• Decision Date: 20 February 1939
• Citation: 1 S.E.2d 300
• Court: Virginia Supreme Court
• Parties: JONES. v. COMMONWEALTH.

1 S.E.2d 300

JONES.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Feb. 20, 1939.

Error to Circuit Court, Elizabeth City County; John Weymouth, Judge.

Joseph Jones was convicted of robbery, and he brings error.

Reversed and remanded for a new trial.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

William Davis Butts, of Newport News, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Joseph L. Kelly, Jr., Asst. Atty. Gen., for the Commonwealth.

SPRATLEY, Justice.

This writ of error brings under review a verdict and judgment wherein the accused was found guilty of robbery, and sentenced to confinement in the penitentiary for ten years.

On March 3, 1934, about three a. m., three negroes, Harrison Kemp, William Washington, a half brother of the accused, and Joseph Jones, the accused, were going home and had actually turned from the street into a yard. All were under the influence of liquor, but were not otherwise disorderly. J. Leslie Curtis, a police officer of the city of Hampton, came up in a motor car and seeing them, undertook to place all three of them under arrest, although they were molesting no one. Kemp was put in the police car; Washington protested, and while the officer was scuffling with him, Jones, the accused, who had also been told to get in the police car, ran away. During the scuffle, the police officer fired his pistol. Jones, upon hearing the shot, returned to the scene, and found his half brother and the police officer struggling to-gether on the ground. He did not strike the officer, display any weapon against him, or say anything to him. He went around the back of the car and reaching over the officer's shoulder, took the pistol from the officer's hand, and immediately went away. The officer called to him, "Boy, come back here, " but Jones did not go back. He later threw the pistol away. On the next day he returned to his employment in another State, and did not come back to Virginia until 1936. The officer said that his hand from which the pistol was taken was thereby made "sore a month."

On December 5, 1937, the accused was arrested on another charge, and, when brought into the police station, Officer Curtis asked him: "Are you the man who took my pistol sometime back?" The accused replied, "Yes, sir." He was then asked what he had done with the pistol, and replied, "I threw it in Dyke's Creek." Subsequently the accused, for his acts on March 3, 1934, was indicted for robbery and convicted.

The only assignment of error is based on the trial court's refusal to set aside the verdict on the ground that the Commonwealth's evidence is not sufficient to establish the animus furandi, one of the essential elements of robbery.

Virginia Code 1936, § 4405, prescribes the punishment for robbery, but leaves the definition of the crime as it was defined at common law. Brookman v. Commonwealth, 151 Va. 522, 145 S.E. 358; Houston v. Commonwealth, 87 Va. 257, 12 S.E. 385.

The common law definition of robbery, repeated in numerous decisions of this court, is: " 'Robbery is an aggravated form of larceny, but is treated as a distinctive crime. It 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.' Clark's Crim.Law, 2d Ed., p. 323." Butts v. Com., 145 Va. 800, 133 S.E. 764, 767; Houston v. Com., supra; and Jordan v. Com, 25 Grat. 943, 66 Va. 943.

The Commonwealth relies upon the following circumstances to establish the criminal intent or the animus furandi: (1) The accused wrenched the pistol from the hand of the officer with force; and (2) that he took complete possession of the pistol, car-Tied it away and made such disposition of it that the officer was deprived permanently of his property.

The accused, denying the existence of such intention, relies upon: (1) The fact that he and his companions were returning from a party, and had entered into no agreement to rob the officer; and (2) the circumstances to show that the taking was solely for the purpose of preventing injury to his half brother.

The animus furandi, in the connection here used, is generally translated as an "intent to steal, " a "criminal intent, " or an "intent to feloniously deprive the owner permanently of his property." Butts v. Com., supra.

To constitute robbery, the ad must be done with a specific criminal intent existing at the time of the commission of the act. To sustain the conviction here, the felonious intent must be shown by the Commonwealth to have existed at the moment the accused snatched the pistol from the hand of the officer. If the criminal intent did not exist when the alleged offense was committed, the crime has not been established. The intent subsequent to the taking is immaterial. Jordan v. Com., supra; Butts v. Com, supra.

Prior to the time that the officer attempted to make the arrest, and before the pistol was fired, the circumstances do not indicate that there was any criminal intent existing in the mind of Jones. He appears only to have been intent upon avoiding trouble, as evidenced by his flight. His chief desire was to avoid contact with the law. There was nothing to animate him except the motive of self-preservation. The first disturbance was created when the officer undertook to make the arrest. The second occurred when the officer fired the pistol. Jones' flight was...