Shehany v. Lowry
| Decision Date | 12 February 1930 |
| Docket Number | 7290. |
| Citation | 152 S.E. 114,170 Ga. 70 |
| Parties | SHEHANY v. LOWRY, Sheriff. |
| Court | Georgia Supreme Court |
Motion to Rehear Denied March, 1, 1930.
Syllabus by the Court.
Want of consent of the person alleged to have been robbed is an essential element of the offense of robbery; but where a defendant is tried, convicted, and sentenced upon an indictment charging him with the offense of "robbery for that said accused *** with force and arms did wrongfully fraudulently, and violently, by force and intimidation, take from the person of R. C. Parker" $40, etc., the indictment is not void upon its face by reason of a failure to allege that the taking "was without the consent of the owner," so as to render the imprisonment of the convict in accordance with such sentence illegal and entitle him to be discharged upon petition for habeas corpus. The charge that the money was taken "wrongfully fraudulently, and violently, by force and intimidation, *** with intent to steal the same," is subject to no legal construction other than as a charge that the taking was without the consent of the person alleged to have been robbed, and therefore states the offense in language so plain that "the nature of the offense charged may be easily understood by the jury."
Additional Syllabus by Editorial Staff.
Under Pen. Code, § 148, defining robbery as wrongful taking of property from person of another by force without consent of owner, word "consent" means voluntary yielding of will and cannot be subject of compulsion (citing Words and Phrases, Third Series, "Consent").
"Intimidation," as relates to law, has a definite meaning and consists in putting a person in fear in some way (citing Words and Phrases, Third Series, ""Intimidation").
Error from Superior Court, Fulton County; E. D. Thomas, Judge.
Petition for habeas corpus by John Shehany against J. I. Lowry, Sheriff. Judgment for defendant, and petitioner brings error.
Affirmed.
Peek & Henson, of Atlanta, for plaintiff in error.
John A. Boykin, Sol. Gen., and J. W. Le Craw, both of Atlanta, for defendant in error.
John Shehany was tried, convicted, and sentenced to imprisonment at hard labor for not less than three years and not more than five years, under an indictment charging him with the offense of "robbery, for that said accused *** with force and arms did wrongfully, fraudulently, and violently, by force and intimidation, take from the person of R. C. Parker, with intent to steal same, forty dollars in money the property of said Parker, contrary to the laws of said State," etc. Thereafter Shehany filed a petition for habeas corpus, alleging that he was being detained by Lowry, sheriff, under pretence of the sentence imposed upon him after conviction as above set forth, and that the restraint was illegal because the indictment under which petitioner was convicted was and is utterly void and charges no crime against petitioner, in that it "is not alleged that anything of value was taken from the person of R. C. Parker, or any one else, without the consent of said Parker, or any one else," and that the failure to allege one of the essential elements of the offense of robbery, "want of consent of the person alleged to have been robbed," rendered the indictment fatally defective, as such indictment is not amendable, and that therefore the judgment or sentence of the court based upon said indictment is void. It is alleged that the "fatal defect in said indictment, and consequently in said verdict and sentence of the court, has never been adjudicated by demurrer at or before the trial of the case, or otherwise."
The sheriff filed no response and introduced no testimony. At the hearing it was admitted that the statements of fact in the petition, as to the proceedings as therein set forth, were true. The judge remanded the petitioner to custody, and he excepted to this judgment as contrary to law.
Section 954 of the Penal Code provides that: "Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may be easily understood by the jury." This is the rule of construction established by our law which is generally employed in determining whether an indictment sufficiently sets forth the offense sought to be charged. See cases cited 7 Enc. Dig. Ga. R. 263, 264. Under this provision an indictment is sufficient if it states the offense so plainly that a man of rational understanding cannot fail to understand it (Stephen v. State, 11 Ga. 225), or, to use the express language of the code section, "so plainly that the nature of the offense charged may be easily understood by the jury" (section 954). Under the wording of the indictment in this case, was the offense stated so plainly that the nature thereof could be easily understood by the jury? The offense is substantially charged in the precise words of section 148 of the Penal Code, defining robbery, except for the omission of the words "without the consent of the owner." It is undoubtedly true that there can be no robbery unless the money or goods be taken without the consent of the owner, but it is not essential that the words "without consent" be stated in the indictment, if there be equivalent words employed, or if the offense be charged in such language as to exclude any thought other than that the taking was without the consent of the owner. An intent to steal is a substantive element in the commission of the offense of robbery (Sledge v. State, 99 Ga. 684, 26 S.E. 756); but it has been held that the word ""fraudulently," when used in connection with the words "unlawfully, and with force and arms, wrongfully, fraudulently, and violently take from the person *** without the consent of the owner by force and intimidation," implies an intent to steal. Holland v. State, 8 Ga.App. 202, 68 S.E. 861.
In the present case it is charged that the defendant committed the offense of "robbery, for that said accused *** with force and arms did wrongfully, fraudulently, and violently by force and intimidation, take from the person of R. C. Parker, with intent to steal the...
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