Montsdoca v. State

• Decision Date: 03 July 1922
• Citation: 93 So. 157,84 Fla. 82
• Parties: MONTSDOCA et al. v. STATE.
• Court: Florida Supreme Court

93 So. 157

84 Fla. 82

MONTSDOCA et al. v. STATE.

Florida Supreme Court

July 3, 1922

Rehearing Denied July 29, 1922.

Error to Circuit Court, Osceola County, C. O. Andrews, Judge.

Robert Montsdoca was convicted of robbery, and Joe Tracy was convicted of being a principal in the second degree, being present aiding, inciting, assisting and abetting Robert Montsdoca in the commission of the felony, and they bring error.

Affirmed.

Browne C.J., and Taylor, J., dissenting.

Syllabus by the Court

SYLLABUS

Where indictment charges alternative ingredients of robbery conjunctively, defendant may be convicted of either alternative ingredient.Where an indictment charges the alternative ingredients of the offense of robbery conjunctively, the charge will be sustained if either alternative ingredient is proven.

'Robbery' under the common law defined.Under the common law, the putting of the victim in fear was not the only essential ingredient of robbery.The elements of robbery were lack of consent, force and violence used, or the putting in fear of the person robbed.

Intent to steal essential; violence or intimidation must precede or be contemporaneous with taking of property.In the crime of robbery an intent to steal is essential, so is violence or putting the victim in fear, and the violence or intimidation must precede or be contemporaneous with the taking of the property.

Degree of force immaterial if victim parts with property under apprehension of violence.In the offense of robbery the degree of force used is immaterial.All the force that is required is such force as is actually sufficient to overcome the victim's resistance, and such violence need not be actual to constitute the offense.If the victim has a reasonable apprehension of violence which to avoid he parts with his property to the person unlawfully demanding it, the offense is robbery under section 5056, Revised General Statutes.

Threat to charge owner with crime other than sodomy is not sufficient to put him in fear.To commit the offense of robbery under the statute, a threat of prosecution for a crime is regarded as insufficient to create fear; the one exception is a threat to bring against the victim a charge of the heinous offense of sodomy.

One who induced another to part with money through fear of bodily injury held guilty of robbery.Where one attacks another upon the public highway, assaults him by grasping him by the shoulder and shaking him, and, commanding him to get out of the automobile in which he is riding, forcefully takes possession of the automobile, and representing himself to be an officer of the law threatens prosecution for some imaginary offense, by which conduct he induces the traveler to part with money, which he does through fear of bodily injury and against his will, such conduct is deemed to constitute the offense of robbery as denounced by section 5056, Rev. Gen. St. 1920.

COUNSEL

Johnston & Garrett, of Kissimmee, for plaintiffs in error.

Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen for the State.

OPINION

ELLIS, J.

Robert Montsdoca was indicted for robbery alleged to have been committed in Osceola county on May 17, 1921, by taking from the person of W. H. Lamacks against his will $60 in money Montsdoca not then being armed with a dangerous weapon.Joe Tracy was charged in the same indictment as principal in the second degree, being present aiding, inciting, assisting, and abetting Robert Montsdoca in the commission of the felony.SeeHenry v. State,81 Fla. 763, 89 So. 136.

The defendants pleaded not guilty.Upon a trial of the cause a verdict of guilty as charged in the indictment was returned by the jury against both defendants.They seek to reverse the judgment upon writ of error.

There are 31 assignments of error, all of which rest upon the evidence as being insufficient to support the verdict and the giving of certain instructions to the jury and the refusal to give others requested.Some of the assignments are argued in behalf of Montsdoca, and others in behalf of Tracy.Many of the errors assigned are abandoned.

The theory of the defense is that the property was not obtained by Montsdoca and Tracy from Lamacks by putting him in fear within the meaning of the statute; that if it was obtained at all, it was not obtained by violence nor by putting Lamacks in fear; that it was obtained by threats of arrest or criminal prosecution for other than sodomitical practices.

Section 5056,Revised General Statutes 1920, provides as follows:

'Whoever by force, violence or assault, or putting in fear, feloniously robs, steals and takes from the person of another money or other property, which may be the subject of larceny (such robber not being armed with a dangerous weapon), shall be punished by imprisonment in the state prison not exceeding fifteen years.'

The language of the indictment so far as it relates to the taking of the property is as follows: That Montsdoca 'by force, violence and assault and putting in fear, unlawfully and feloniously did then and there rob, steal and take away from the person of W. H. Lamacks against his will the sum of 60 dollars in lawful money of the United States of America,' etc., 'the said Robert Montsdoca not being then and there armed with a dangerous weapon.'

Tracy was charged, as stated, with the offense of being then and there 'unlawfully and feloniously present aiding and * * * inciting, assisting and abetting said Robert Montsdoca in manner and form and by means aforesaid the said felony then and there to do and commit.'

It will be observed from a careful reading of the statute that there are several alternative ingredients of the crime of robbery.If property the subject of larceny is unlawfully taken from another either by force or violence or by assault or by putting in fear, the offense denounced by the statute is committed.The indictment charges these alternative ingredients of the offense conjunctively, and the charge should be sustained if either alternative ingredient is proven.SeeMcDuffee v. State,55 Fla. 125, 46 So. 721;Lewis v. State,55 Fla. 54, 45 So. 998;Strobhar v. State,55 Fla. 167, 47 So. 4;Bradley v. State,20 Fla. 738;King v. State,17 Fla. 183;Gafford v. State,79 Fla. 581, 84 So. 602.

In the case of Simmons v. State,41 Fla. 316, 25 So. 881, the defendants were charged with robbery by one of the methods only by which the statute declares the offense may be committed, namely, 'putting in fear.'In that casethe court, speaking through Mr. Justice Carter, said that the defendants by falsely representing and pretending that one of them was an officer and authorized to take the property, and by 'then and there threatening to arrest and take into custody the said Rebecca Jackson[the victimized person], if she resisted them in the taking of said furniture,' cannot be said to have put in fear the person alleged to have been robbed by that method.Under the common law the putting of the victim in fear was not an essential ingredient of robbery.At common law the elements of robbery were: The lack of consent, the force and violence used or the putting in fear of the person robbed.These elements distinguished robbery from extortion, obtaining goods under false pretense, and larceny.See29 R. C. L. 1139;2 East'sP. C. 707; 2 Bishop's Criminal Law, 670;4 Bl. Comm. 242.

According to the above authority, the distinction between larceny and robbery is a nice one.The criterion which distinguishes these offenses is the violence which precedes the taking.There can be no robbery without violence, and there can be no larceny with it.It is violence that makes robbery an offense of greater atrocity than larceny.Robbery may thus be said to be a compound larceny composed of the crime of larceny from the person with the aggravation of force, actual or constructive, used in the taking.29 R. C. L. 1140;34 Cyc. 1796.

An intent to steal is essential, so is violence or putting in fear.See34 Cyc. 1799.The violence or intimidation must precede or be contemporaneous with the taking of the property.SeeColbey v. State,46 Fla. 112, 35 So. 189, 110 Am. St. Rep. 87.

The degree of force used is immaterial.All the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim's resistance.See34 Cyc. 1800;Tones v. State,48 Tex. Cr. R. 363, 88 S.W. 217, 1 L. R. A. (N. S.) 1024, 122 Am. St. Rep. 759, 13 Ann. Cas. 455.

Violence need not be actual to constitute the offense of robbery.It is robbery to create in the person to be despoiled a reasonable apprehension of violence to avoid which he parts with the thing.An assault which has not traveled to a battery, or probably any such array of force as is calculated to create the reasonable apprehension, though short of a technical assault, suffices.The menace must be of a sort to excite reasonable apprehension of danger.Threat of prosecution for a crime is generally regarded as insufficient to create fear upon the theory that a man in the hands of the law is not legally presumed to be in danger of bodily harm.The one exception grafted upon the doctrine by the English cases is a threat to bring against the victim the charge of sodomy.But says Mr. Bishop there is clearly no foundation of principle for the exception.It is an excrescence on the law.2 Bishop's New Criminal Law, 674, 675.

'But where one falsely pretended to have official authority and thereon seized another, shoved him against a wall, and threatened to take him to jail unless he paid the demanded money, this actual violence elevated the taking of the money to robbery.'2 Bishop's New Criminal Law, 676;Bussey v. State,71 Ga. 100, 51 Am. Rep. 256...