Routt v. State

• Decision Date: 25 January 1896
• Parties: ROUTT v. STATE.
• Court: Arkansas Supreme Court

34 S.W. 262

ROUTT v. STATE.

Supreme Court of Arkansas.

January 25, 1896.

Appeal from circuit court, Lee county; N. Hutton, Judge.

P. M. Routt was convicted of robbery, and appeals. Modified.

The appellant, P. M. Routt, and one Jim Morgan, whom the evidence shows to have been gamblers and confidence men, obtained from C. F. Holt $100, in the following manner: They were passengers upon a train of the Cotton Belt Railroad. Routt began a conversation with Holt, and exhibited some cards, saying that the boys had been using them for trick cards, and had won the cigars and drinks from him. He then, to use the language of a witness, "explained to Holt how the trick was worked." About this time Morgan entered the car where Routt and Holt were talking. Routt offered to bet him $10 that he could not draw a certain card. Morgan accepted the offer, and Routt asked Holt for a loan of $10, at the same time nudging him with his knee. Holt pulled from his pocket a roll of bills containing several hundred dollars. On the top of the roll was a $100 bill, which Routt snatched from Holt's hand. Morgan then snatched it from Routt, and started out of the rear door of the car. Holt drew his pistol to prevent Morgan from escaping with his money. Morgan also drew his pistol, when Routt interceded, saying to Holt: "Don't shoot! Don't! I'll give you back your money." In this way he pacified Holt until Morgan left the car and escaped with the money. There was no violence or display of force, or threats of any kind, until Holt drew his pistol in his effort to prevent Morgan from leaving the car with the money. Routt was captured, and indicted for robbery. Upon trial the jury found him guilty of robbery, and assessed the punishment at 10 years in the state penitentiary, and a judgment to that effect was rendered against the defendant.

N. W. Norton, for appellant. E. B. Kinsworthy, Atty. Gen., for the State.

RIDDICK, J. (after stating the facts).

The judgment of the circuit court must be reversed, for the facts in proof do not make out a case of robbery. Robbery, as defined by the text-books and the previous decisions of this court, is a felonious and forcible taking of the property of another from his person or in his presence, against his will, by violence, or putting him in fear. And this evidence must precede or accompany the taking of the property. Clary v. State, 33 Ark. 561; 1 Whart. Cr. Law, § 846. The taking must be done through force or fear. "If force is relied on in proof of the charge, it must be the force by which another is deprived of, and the offender gains, possession. If putting in fear is relied on, it must be the fear under duress of which the possession of the property is surrendered. The fear of physical ill must come before the relinquishment of the property to the thief, and not after, else the offense is not robbery." Thomas v. State, 91 Ala. 36, 9 South. 81; 2 Bish. New Cr. Law, § 1175; Rex v. Harman, 2 East, P. C. 736. It is well established that the snatching of money or goods from the hand of another is not robbery, unless some injury is done to the person, or there be some previous struggle for the possession of the property, or some force used in order to obtain it. In an Indiana case the complainant was fraudulently induced by two confederates to expose some money in his hands. One of them then snatched it from him and ran away, while the other held him so that he could not pursue, and a struggle between them ensued. The court held that this did not constitute robbery. Shinn v. State, 64 Ind. 423. We need not discuss the authorities further, for there are numerous cases holding that where the property is obtained by artifice, trick, or by merely snatching from the hand, and where the only display of force is used to prevent the retaking of the property by the owner, the crime is not robbery. Thomas v. State, 91 Ala. 36, 9 South. 81; Shinn v. State, 64 Ind. 423; State v. John, 5 Jones (N. C.) 163; State v. McCune, 70 Am. Dec. 176, and note; Rex v. Harman, 2 East, P. C. 736; 2 Bish. New Cr. Law, § 1167; 1 Whart. Cr. Law, § 854. In this case the money was obtained by snatching from the hand. There was no force, or display of force, or putting in fear, until Holt drew his pistol to prevent Morgan from leaving the car with the money. Morgan then drew his pistol, but this was done, not to force Holt to surrender the possession of the money, for he had already parted with it, but only to prevent him from regaining possession. The proof, we think, clearly shows that Routt and Morgan were guilty of larceny, but it is not sufficient to sustain a conviction of robbery. The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

On Rehearing.

(Feb. 22, 1896.)

After the judgment of reversal was entered in this case, the attorney general filed a motion to modify the judgment. He asked that the case be remanded, not for a new trial, but with an order that the circuit court sentence the defendant for the crime of grand larceny. Our statute provides that "the supreme court may reverse, affirm or modify the judgment or order appealed from in whole or in part, and as to any or all parties, and when the judgment or order has been reversed the...