Mason v. Com., 4902
| Decision Date | 13 October 1958 |
| Docket Number | No. 4902,4902 |
| Citation | 105 S.E.2d 149,200 Va. 253 |
| Parties | WILLIAM PAUL MASON v. COMMONWEALTH OF VIRGINIA. Record |
| Court | Virginia Supreme Court |
George M. Martin, for the plaintiff in error.
Reno S. Harp, III, Assistant Attorney General (A. S. Harrison, Jr., Attorney, General, on brief), for the Commonwealth.
William Paul Mason was convicted by a jury of robbery and his term of confinement fixed at life imprisonment. Accused insisted that the evidence was insufficient to sustain a finding of robbery, and moved to set the verdict aside as contrary to the law and evidence. His motion was overruled and judgment entered on the verdict. We granted an appeal.
The indictment charged Mason with robbery of 'Joseph Grimes, by violence and intimidation, by the threat and presentation of firearms.'
No statute in Virginia defines robbery, and to constitute robbery all of the elements essential at common law must exist. Maxwell v. Commonwealth, 165 Va. 860, 183 S.E. 452. However, § 18-163, Code 1950, prescribes the punishment for robbery, and a more severe punishment may be imposed if the crime is committed by violence to the person or by threat or presenting of a deadly weapon or instrumentality than if the robbery be committed 'in any other mode or by any other means.'
Robbery at common law is defined as '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 Criminal Law, 3d ed., § 105, p. 373. 2 Wharton's Criminal Law and Procedure, 1957 ed., Robbery, § 545, p. 241; Butts v. Commonwealth, 145 Va. 800, 133 S.E. 764; Jones v. Commonwealth, 172 Va. 615, 1 S.E.2d 300; Brookman v. Commonwealth, 151 Va. 522, 145 S.E. 358.
The assignment of error, that the evidence is insufficient to support a finding of robbery, requires that the proved facts and circumstances be stated:
On the night of January 18, 1958, Joseph Grimes, a partner in the firm of Grimes and Simpson, a radio-television retail business, was seated in the store in Leesburg, Loudoun county, Virginia, in which the business is conducted. The entrance to the building is recessed, and on each side are plate glass display areas. No light was on in the store, and the only illumination was from street lights. About midnight Grimes' attention was attracted to a car that was driven past the store several times. He became apprehensive, noted the license number of the vehicle, telephoned to the sheriff's office and advised the officer on duty what he had observed, armed himself with a piece of board and stood concealed in the shadows of a partition behind the north display window. Shortly thereafter accused came to the store and hurled a large cement missile through the south plate glass window. He then entered the store and took a portable television set in his arms from the display area about two and one-half feet from the hole in the glass. While he was 'crouched over' and just as he was 'handing the television set to a confederate through the hole in the plate glass,' Grimes, who had stepped over behind accused, hit him a blow on the right shoulder with the board.
When Grimes struck Mason, the latter spun around, threw a portable radio at Grimes and then shot four times towards Grimes with a pistol. At the first shot Grimes, who was standing in the shadows, 'dived for the floor,' crawled behind display merchandise, and then went upstairs for a gun. When he returned, Mason had departed.
Grimes testified 'that the television was out of defendant's arms and in the arms of defendant's companion before defendant threw the radio set and started shooting'; that not until accused 'fired the first shot was he in fear of any firearm,' and 'he meant to protect his property to the best of his ability.'
Accused admitted breaking and entering the store; that the pistol introduced in evidence was used by him to fire at Grimes and that the television set recovered shortly thereafter from the automobile being driven by him when apprehended, was the one taken from the store.
Robbery is an offense against the person. Falden v. Commonwealth, 167 Va. 542, 189 S.E. 326; 2 Wharton's Criminal Law and Procedure, supra, § 545.
The precise question presented is whether the violence toward or intimidation of Grimes by throwing the radio at him or by the threat and presentation of firearms preceded or was contemporaneous with the taking, or whether the violence toward or intimidation of Grimes was subsequent to the taking. If the violence or intimidation preceded or was concomitant with the taking, the offense of robbery is...
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