Moyers v. State

• Decision Date: 25 June 1938
• Docket Number: 12166.
• Parties: MOYERS v. STATE.
• Court: Georgia Supreme Court

197 S.E. 846

186 Ga. 446

MOYERS v. STATE.

No. 12166.

Supreme Court of Georgia

June 25, 1938

Certified Questions from Court of Appeals.

Proceeding by the State against W. T. Moyers, wherein the Court of Appeals requested instruction by the Supreme Court on certain questions.

Questions answered.

Syllabus by the Court.

1. The violent taking of money or property from the person of another by force or intimidation for the purpose of applying the same to the payment of a debt, to which money or property the taker has no bona fide claim of title or right of possession, constitutes the offense of robbery.

2. Under an indictment for robbery, where the creditor compels the debtor by force or intimidation to pay him, it is not a good defense that it was done for the purpose of collecting the debt, although the debt may be correct and due.

3. The passage of a rule of practice of the judges of the superior courts in convention cannot be classified as an exercise of judicial power.

4. This court in answering questions for instruction from the Court of Appeals will not undertake to give any instruction not requested by that court.

The Court of Appeals requested instruction on the following questions:

1. Where B is indebted to A in a stated sum of money, which debt arose out of a contract between A and B, whereby B was to pay A said sum for certain services to be rendered by A, and A by force and intimidation compels B to pay over to him said amount of money as payment of said indebtedness, which money actually so paid was the property of B and to which A had no title, under such circumstances is there a lack of intent to steal (defined as the wrongful appropriation of the property of another to one's own use), which is necessary to constitute the offense of robbery? See Long v State, 12 Ga. 293(8); Crawford v. State, 90 Ga 701, 17 S.E. 628, 35 Am.St.Rep. 242; Gant v. State, 115 Ga. 205, 41 S.E. 698; Holland v. State, 8 Ga.App. 202, 68 S.E. 861.

2. Where A in good faith believes B is indebted to him, but the claim is bona fide in dispute, or is not certain or definite in amount, and A by force and intimidation compels B to pay over to him a certain sum in payment of the claim, does it constitute a good defense by A to an indictment for robbery that he in good faith thought the amount so compelled to be paid over was due and correct?

3. Can the passage of a rule of practice by the judges of the superior courts, which rule is to have uniform operation that 'All exceptions to the charge of the court or failure to charge shall be called to the attention of the trial judge before the jury renders a verdict. While a new trial may be granted for an erroneous charge against the applicant on a material point, a new trial shall not be granted except in the discretion of the judge hearing the motion, where the exception was not noted until after rendition of the verdict' (9 Code Supp. § 24-3367; see Ga.L.1937, p. 464), be classified as the exercise of a 'judicial power' under art. 6, sec. 1, par. 1, of the constitution of this State (Code, § 2-2901), that 'The judicial powers of this State shall be vested in a Supreme Court, a Court of Appeals, Superior Courts, Courts of Ordinary Justices of the Peace, Commissioned Notaries Public and such other Courts as have been or may be established by law'? And if so, had the legislature authority to pass an act repealing this rule and substituting therefor a different and contrary rule, to wit: 'The applicant for a new trial may except to the charge of the court or the failure of the court to charge, and assign error thereon, in his original motion for a new trial, or in an amendment thereto, offered as now provided by law; and it shall not be necessary to call the attention of the trial judge to any error in the charge, or exception to the charge, or to any failure to charge, before the jury renders its verdict' (Acts 1937, p. 592), under the provision of the constitution of this State (art. 1, § 1, par. 23, Code, § 2-123), that 'the legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided'? Const. art. 6, § 3, par. 1; art. 6, § 9, par. 1, Code, §§ 2-3101, 2-3701.

4. If the legislature had the authority to pass the act referred to in the immediately preceding question, is such applicable to a case where the trial occurred before the act was passed, but where the act was passed before the motion for new trial was disposed of?

Geo. G. Finch, of Atlanta, and Graham Wright, of Rome, for plaintiff in error.

John A. Boykin, Sol. Gen., James A. Branch, and J. Walter Le Craw, all of Atlanta, for defendant in error.

Bond Almand, Marion Smith, and Arthur A. Powell, all of Atlanta, for parties at interest not parties to the record.

GRAHAM Judge.

The first and second questions are answered in the negative. The offense of robbery as defined by the Code, § 26-2501: 'Robbery is the wrongful, fraudulent, and violent taking of money, goods, or chattels from the person of another by force or intimidation, without the consent of the owner, or the sudden snatching, taking, or carrying away any money, goods, chattels, or anything of value from the owner or person in possession or control thereof without the consent of the owner or person in possession or control thereof.' Although this definition does not expressly use the language that the taking must be with intent to steal, it does say that robbery is the 'fraudulent, and violent taking of money, goods, or chattels from the person of another by force or intimidation, without the consent of the owner.' The use of the word fraudulent in the statute implies an intent to steal. Rutherford v. State, 183 Ga. 301, 188 S.E. 442. An intent to steal is a substantive element of robbery. There can be no robbery without an intent to steal. Sledge v. State, 99 Ga. 684, 26 S.E. 756; Blackshear v. State, 20 Ga.App. 87, 92 S.E. 547. The words 'with intent to steal,' as used in the statute, mean wrongfully and without the consent of the owner to appropriate the property taken to the taker's own use. Holland v. State, 8 Ga.App. 202, 68 S.E. 861. If the animus furandi is lacking in the taking, there can be no robbery. So our courts have held the taking of property under a fair claim of right of title or possession does not constitute robbery. In Long v. State, 12 Ga. 293, 320, this court said: 'It is true, too, that if a party, bona fide believing that property in the personal possession of another belongs to him, take that property, and none other, away from him, with menaces and violence, it is not robbery, and it will be for the Jury to say whether the party acted under such bona fide belief. So, if in this case, the defendant bona fide believing that the buggy wheels in the personal possession of Braswell belonged to him, had taken them alone by threats and violence, he would not have been guilty of robbery. Russell on Crimes, 1 vol. 871, 872; 3 C. and P. 400. He did not take the buggy wheels, but other and far more valuable property; so that a question of this sort does not arise.' Also, in Gant v. State, 115 Ga. 205, 41 S.E. 698, this court held; 'In the trial of one accused of robbery, it is not error to charge that if two persons play and bet at cards, and the loser wrongfully, fraudulently, and by force and violence compels the winner to surrender to the loser the money won, this is not robbery, but that if the winner is at the same time and in the same manner compelled to surrender not only his winnings, but also some of his individual money, then the loser would be guilty of robbery.' The effect of these decisions on the question at issue is that, to justify a taking of property by force or intimidation, the party taking must be the owner of the specific property taken or be entitled to its possession, or in good faith believe that he is the owner or entitled to its possession.

In order to be a robbery there must be a larceny, an intent to steal. One cannot ordinarily be guilty of stealing his own property. The rule has been stated as follows: 'If one in good faith takes the property of another, believing it to be legally his own, or that he has a legal right to its possession, he is not guilty of larceny.' 36 C.J., 764, § 105. And, 'If one in good faith takes the property of another, believing it to be his own or that he has a right to its possession, though his claim is unfounded, he is not guilty of larceny, because there is no felonious intent to deprive another of his property.' 18 Am. & Eng. Enc. L (2d ed.) 523. Our courts, in a long line of decisions, have held that the taking of property under a fair claim of right does not constitute larceny. Causey v. State, 79 Ga. 564, 566, 5 S.E. 121, 11 Am.St.Rep. 447; Lee v. State, 102 Ga. 221, 223, 29 S.E. 264; James v. State, 114 Ga. 96, 39 S.E. 946; Smith v. State, 11 Ga.App. 385, 75 S.E. 447; Musgrove v. State, 5 Ga.App. 467, 469, 63 S.E. 538; Brown v. State, 51 Ga.App. 52, 179 S.E. 594. Other cases might be cited. Some courts have extended the rule that the taking of property under a fair claim of right does not constitute a larceny as applicable to one who takes money or property of another, without his consent, to apply to the payment of a debt. The wiser principle on this point seems to be as stated in 36 C.J. 764, § 106: 'The fact that a person is indebted to another does not give the creditor a right to seize the debtor's property in payment of the debt; and such a seizure, if made with intent to appropriate the property to the taker's own use, is therefore larceny.' And in 18 Am. & Eng.Enc. L., 524, 'The claim under which the...