Sikes v. Com.

• Decision Date: 20 March 1896
• Parties: SIKES v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

34 S.W. 902

SIKES v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 20, 1896

Appeal from circuit court, Boyle county.

"Not to be officially reported."

George Sikes was convicted of robbery, and appeals. Reversed.

Bent Goodlow and C. C. Bagby, for appellant.

W. S Taylor, for the Commonwealth.

LEWIS J.

Appellant was indicted and convicted for the crime of robbery, which as alleged, he committed by taking two dollars from, and the property of, George Barbour, against the will of and by putting said Barbour in fear of immediate and threatened injury to his person. It appears that Barbour, appellant, and others had been playing inside a house a game called "craps," at which the former won from the latter $2. The gaming crowd then went outside the house, and renewed the game; and, even after they commenced, appellant, who had not engaged in the game, went outside, and, drawing and presenting his pistol at Barbour, demanded of him the return of $2.50; and, in compliance with that demand, Barbour threw upon the ground $2.25, which he stated was all he had. Appellant testified that Barbour had just won from him, in the house, $2.50 (the amount he demanded), by using loaded dice; and that he had just won the money from appellant at the game of craps does not seem to be controverted. But the lower court erroneously instructed the jury to find him guilty upon the hypothesis that he had, by threatening to shoot Barbour, and putting him in fear of injury, taken the money from him, without requiring them to believe he did so feloniously. The case of Thompson v. Com. (Ky.) 18 S.W. 1022, was like this; the charge being robbery alleged to have been committed under circumstances similar to this case. There this court held that the person who wins money at an unlawful game acquires no title thereto, nor right to possession; and, consequently, the person from whom the money was won is not guilty of robbery when he repossesses himself of it, the act not being a felonious taking of the property of another with the fraudulent intent of permanently depriving the owner of it. The court ought therefore to have instructed the jury to acquit if the money which appellant demanded and forced from Barbour had been won from him by the latter at the game of craps; and we do not think it incumbent on appellant to show that the money he reclaimed was the identical money won from him by Barbour. Wherefore, for the errors...