Lunce v. Com.

• Decision Date: 20 December 1929
• Citation: 22 S.W.2d 629,232 Ky. 214
• Parties: LUNCE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

22 S.W.2d 629

232 Ky. 214

LUNCE v. COMMONWEALTH.

Court of Appeals of Kentucky

December 20, 1929

Appeal from Circuit Court, Bell County.

Bill Lunce was convicted of robbery, and he appeals. Reversed with instructions.

M. G Colson, of Pineville, for appellant.

J. W Cammack, Atty. Gen., and Geo. H. Mitchell, Asst. Atty. Gen for the Commonwealth.

DIETZMAN J.

The appellant was convicted of the offense of robbery and sentenced to serve two years in the penitentiary. He appeals.

He insists that the demurrer to the indictment should have been sustained, that he was entitled to a peremptory instruction, and that the instructions given were erroneous. The facts are these: Albert Clark borrowed a pistol belonging to Sol Simpson and worth $28. Clark in turn loaned this pistol to John Slusher. Slusher and the appellant met near the railroad and just above the hotel at Black Mont in Bell county. They seem to have been in a crowd of young people congregated in front of the hotel. According to the evidence of the commonwealth, the appellant walked up to Slusher, who was carrying Simpson's revolver in the right front pocket of his trousers, took the pistol out of Slusher's pocket, and told Slusher to run, firing under Slusher's feet as he did so. Slusher did not argue with the appellant but did as he was commanded. Just what the appellant did with the revolver is not clear from the commonwealth's proof, although, as all agree, the pistol was later seen in the possession of the appellant's brother, who has since left the country and cannot be found. The pistol was never recovered by either Slusher, Clark, or Simpson. According to the evidence for the appellant, Slusher drew the revolver he was carrying and presented it at the appellant, who, in order to save himself, as he thought, from harm, snatched it from Slusher's hand and threw it over the railroad bank. Appellant says he had no idea of stealing this gun, and that without any connivance on his part his brother, who happened to be passing by there, saw the revolver on the ground, picked it up, and disappeared with it. From this statement of the case it is plain that it was one for the jury, and appellant was not entitled to a peremptory instruction. Branham v. Commonwealth, 223 Ky. 233, 3 S.W.2d 629.

Appellant insists that his demurrer to the indictment should have been sustained because the indictment failed to aver that the pistol had been taken forcibly and against the will and consent of Slusher and by putting him in fear; but all of these allegations which appellant says should have been in the indictment were in fact in the indictment.

Coming to the instructions, we find that the court only submitted to the jury the issue whether the appellant had committed the offense of robbery or not. The appellant insists that he was entitled to an instruction on grand larceny. His contention in this regard is fully answered by the opinion of this court in the case of Armstrong v. Commonwealth, 190 Ky. 217, 227 S.W. 162, 163. We there said:

"The distinguishing characteristic of robbery is the employment of force or intimidation in taking from the person or possession of the owner or custodian personal property; while larceny is, ordinarily, a taking of such property by stealth, and may, or may not, be from the person or presence of the one in possession. Any force sufficient to take one's property against the will is robbery. Graves v. Com., 186 Ky. 479, 217 S.W. 356; Adams v. Com., 153 Ky. 88, 154 S.W. 381, 44 L. R. A. (N. S.) 637; Stockton v. Com., 125 Ky. 268, 101 S.W. 298, 30 Ky. Law Rep. 1302; Brown v. Com., 135 Ky. 635, 117 S.W. 281, 135 Am. St. Rep. 471 ; Blanton v. Com., 139 Ky. 411, 58 S.W. 422, 22 Ky. Law Rep. 515; Jones v. Com., 112 Ky. 689, 66 S.W. 633, 23 Ky. Law Rep. 2081, 57 L. R. A. 432, 99 Am. St. Rep. 330; Breckinridge v. Com., 97 Ky. 271, 30 S.W. 634, 17 Ky. Law Rep. 163; Davis v. Com., 54 S.W. 959, 21 Ky. Law Rep. 1295.

In Graves v. Com., supra, the defendant by suddenly assaulting and overpowering the owner, took from his person his gold watch and chain and escaped with them by flight. In Brown v. Com., supra, a pocketbook containing $6 was suddenly and unexpectedly to the owner snatched from his hand by the defendant, immediately followed by the swift flight of the latter. In Jones v. Com., supra, the defendant snatched from the hand of the owner a pocketbook so quickly that the latter did not have time to actively resist. In Davis v. Com., supra, money was suddenly snatched by the defendant from the hand of the owner. It will thus be seen that in none of these cases did the force or putting in fear precede the taking of the property, but in each instance accompanied it; the force and taking of the property being one and the same act, and the force consisting of the violence employed in taking the property. It will further be found that in each of the cases cited it was held that the perpetrator of the crime was not guilty of grand larceny, but of robbery, as charged in each indictment."

However it will be noted from our statement of the case that it was the appellant's contention that, although he took the pistol in question forcibly from the...