People v. Gallegos, 17337

• Decision Date: 27 September 1954
• Docket Number: No. 17337,17337
• Citation: 274 P.2d 608,130 Colo. 232
• Parties: , 46 A.L.R.2d 1224 The PEOPLE of the State of Colorado, Plaintiff in Error, v. Joe GALLEGOS, Defendant in Error.
• Court: Colorado Supreme Court

Page 608

274 P.2d 608

130 Colo. 232, 46 A.L.R.2d 1224

The PEOPLE of the State of Colorado, Plaintiff in Error, v. Joe GALLEGOS, Defendant in Error.

No. 17337.

Supreme Court of Colorado, En Banc.

Sept. 27, 1954.

Duke W. Dunbar, Atty. Gen., Robert Delaney, Dist. Atty., Ninth Judicial Dist. and Sp. Asst. Atty. Gen., Glenwood Springs, for plaintiff in error.

Charles F. Stewart, Glenwood Springs, for defendant in error.

ALTER, Justice.

Joe Gallegos was charged with aggravated robbery, and, upon trial to the court--a jury having been waived--at the conclusion of the evidence and upon motion of counsel for defendant, he was found not guilty. The People bring the cause to our Court under the provisions of section 500, chapter 48, '35 C.S.A., seeking a reversal of the judgment of the trial court.

The facts are not in serious dispute. Joe Gallegos was a sheepherder employed by one D. A. McPherson at a monthly wage of $180 with a provision that if he would take the herd of sheep onto the forest reserve and stay with them until fall, his wages would be $200 a month. Gallegos later quit his employment and demanded his wages upon the basis of $200 per month, and this led to a dispute with his employer.

Later, and during the same day of the dispute, defendant drew a gun and pointed it at his employer to enforce his demand, and McPherson, being 'under force or intimidation,' complied. Whereupon, defendant departed. He later was arrested, and, as we have said, charged with aggravated robbery.

Our statute, section 84, chapter 48, '35 C.S.A., provides, inter alia, 'Robbery is the felonious and violent taking of money, goods or other valuable thing from the person of another by force or intimidation.' It is undisputed that defendant used a gun in demanding and receiving a check for wages, the payment of which he honestly believed to be due him.

Counsel for defendant does not contend that in thus securing the payment of his wages no crime was committed, nor did the trial court so determine. The only question presented on this review is whether, under the facts, defendant was guilty of aggravated robbery as to which the trial court held him guiltless.

Gallegos, in his defense in the trial court, relied upon, and the basis of his motion was, our opinion in Analytis v. People, 68 Colo. 74, 188 P. 1113. We have read and carefully considered the record in that case and have concluded that the decision there is determinative of the matter presented in the instant proceeding, and amply supported the trial court's disposition of this case.

We are aware of the fact that there is a divergence of opinion in robbery cases, and in Moyers v. State, 186 Ga. 446, 197 S.E. 846, 847, 116 A.L.R. 981, there is a nicety of distinctions which we are disinclined to adopt in this jurisdiction. However, it is to be noted that in that case is the statement, '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.' Also it should be observed that in the Georgia case the word 'fraudulent' is used in the definition of robbery, and its absence in our jurisdiction is to be noted.

'Animus furandi' is a latin phrase which generally may be translated as intent to steal, that is, a criminal intent or an intent to feloniously deprive an owner of his property.

In the Analytis case, supra, we cited the court's opinion in State v. Hollyway, 41 Iowa 200, and therein is to be found the following: 'If it be not robbery to forcibly take property from another as security for that to which the defendant in good faith...