Rutherford v. State

• Decision Date: 11 November 1936
• Docket Number: No. 11421.,11421.
• Citation: 183 Ga. 301,188 S.E. 442
• Parties: RUTHERFORD. v. STATE and four other cases.
• Court: Georgia Supreme Court

183 Ga. 301

188 S.E. 442

RUTHERFORD.

v.STATE and four other cases.

No. 11421.

Supreme Court of Georgia.

Nov. 11, 1936.

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Syllabus by the Court.

1. An indictment for robbery in the language of the definition of this offense asgiven in the Code is not subject to demurrer because it fails to allege in specific terms that the taking was "with intent to steal, " the word "fraudulent" as used in such definition implying an intent to steal.

2. But upon the trial of one charged with robbery, a charge by the court to the jury in the language of the statute is not a sufficient definition for the guidance of the jury. Whether or not the failure of the court to charge in regard to intent to steal may be held "reversible error" will depend upon the circumstances of the particular case, including the issues developed upon the trial.

Certified Questions from Court of Appeals.

W. E. Rutherford and others were charged with robbery and in the course of the proceedings questions were certified by the Court of Appeals to the Supreme Court.

Questions answered.

The Court of Appeals certified the following questions:

"1. Is an indictment which charges the offense of robbery in the language of the Code of 1933, § 26-2501, subject to demurrer because it fails to allege that the taking was with 'intent to steal'? Sledge v. State, 99 Ga. 684, 26 S.E. 756; Blackshear v. State, 20 Ga.App. 87, 92 S.E. 547; Lacey v. State, 44 Ga.App. 791, 163 S.E. 292; Holland v. State, 8 Ga.App. 202, 68 S.E. 861; Shehany v. Lowry, 170 Ga. 70, 152 S.E. 114; Gleaton v. State, 50 Ga.App. 210, 177 S.E. 362; Morris v. State, 51 Ga. App. 661, 663, 181 S.E. 89; 1 Leach, 195; Com. v. Humphries, 7 Mass. 242; 3 Bouv. Law. Diet. (Rawle's 3d Ed.) 2971.

"2. Under such an indictment as just described is a charge of the court to the jury, defining the offense of robbery in the identical language of the Code, reversible error, where such charge omits to state that the taking must be with 'intent to steal'? In Sledge v. State, 99 Ga. 684, 26 S.E. 756, it was said that section 26-2501 (Penal Code of 1895, § 151; Code of 1910, § 148) is inaccurate for want of fullness; and 'There can be no robbery without an intent to steal, and hence it is legally impossible for the trial judge to give to the jury correct instructions * * * which leaves entirely out of view the question of felonious intent.' In other words, is a charge by the court in the language of the Code defining robbery, a sufficient definition of the offense? See cases already cited."

W. B. Mebane and J. L. Wallace, both of Rome, and F. C. Oates, Jr., of Cedar-town, for plaintiff in error.

Jos. F. Kelly, Sol. Gen., of Rome, and J. Ralph Rosser, of LaFayette, for defendant in error.

BELL, Justice.

1. The first question is answered in the negative. In Holland v. State, 8 Ga. App. 202, 68 S.E. 861, it was held that an indictment in the language of the definition of robbery as given in the Code is not subject to demurrer upon the ground that it does not allege an intent to steal, such intent being implied by the word "fraudulent" as used in the statute. Code § 26-2501. A similar ruling was made in Lacey v. State, 44 Ga.App. 791, 163 S.E. 292, where it was pointed out that the statement to the contrary in Sledge v. State, 99 Ga. 684 (2), 26 S.E. 756, was obiter dictum, and therefore not binding as a precedent. The question now presented was directly involved in each of the cases decided by the Court of Appeals, and this court is of the opinion that those rulings were correct. See, in this connection, Code, § 27-701; State v. Brown, 113 N.C. 645, 18 S.E. 51; 18 Enc.Pl. & Pr. 1218.

2. The decision in Sledge v....