State v. Aldershof
| Decision Date | 06 November 1976 |
| Docket Number | No. 48314,48314 |
| Citation | 220 Kan. 798,556 P.2d 371 |
| Parties | , 93 A.L.R.3d 634 The STATE of Kansas, Appellee, v. Robert W. ALDERSHOF, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. To constitute the crime of robbery by forcibly taking money from the person of its owner, it is necessary that the violence to the owner must either precede or be contemporaneous with the taking of the property.
2. The test is whether or not the taking of the property has been completed at the time the force or threat is used by the defendant, which must be determined from the factual circumstances in each case.
3. Robbery is not committed where the thief has gained peaceable possession of the property and uses no violence except to resist arrest or to effect his escape.
Hal H. Lockett, Wichita, argued the cause, and was on the brief for appellant.
Christopher A. Randall, Asst. Dist. Atty., argued the cause, and Curt Schneider, Atty. Gen., Keith Sanborn, Dist. Atty., and Stephen M. Joseph, Asst. Dist. Atty., were with him on the brief for appellee.
This is a direct appeal in a criminal action in which the defendant-appellant, Robert W. Aldershof, was convicted of the offense of robbery. (K.S.A. 21-3426, Weeks 1974.) The facts pertaining to the offense were virtually undisputed and were essentially as follows: On the evening of August 5, 1974, the defendant Aldershof along with two friends, Eddy Kennedy and Ron Gudenkauf, went to the Bear Tree Inn, a drinking establishment in Wichita. During the course of the evening all three men imbibed heavily. While at the tavern the defendant approached a friend, James Truesdell, and indicated that he was short of money and would like to borrow some. Truesdell replied that he was broke and could not make a loan. Truesdell later tole a Wichita police officer that the defendant had told him that he was going to get some by any means possible. During the course of the evening two young women, Christy Razook and her sister-in-law, Debbie Razook, arrived at the tavern, sat down at a booth, and each ordered a drink. Shortly thereafter there was a power failure which caused the lights to go out. The only light in the tavern was that from one flashlight. During the outage three men came over to the table occupied by the Razook women without invitation and attempted to make conversation. Debbie asked the three men to leave, saying that they were just there to drink a beer and did not want any hassle. Because of the poor lighting the women were unable to see the faces of the three men. The three men left.
At about this time Debbie asked Christy Razook to watch her purse while she went to the restroom. Debbie's purse was left on the table directly across from Christy. The lights were still out and Debbie had a difficult time finding her way to the restroom. While she was gone, an unidentified man came to the booth and snatched Debbie's purse from the table and Christy's purse from her lap. The man quickly left the tavern. Christy ran after him. Michael Dahlem, a friend of the defendant, testified that he saw defendant heading for the door with Christy right behind him. Christy Razook testified that outside the tavern in the parking lot she managed to grab the man on the back of his shirt. He turned and struck her in the eye with his hand. The man then got into Kennedy's vehicle which left the scene. Kennedy testified that he and the defendant and Gudenkauf proceeded to another tavern, stayed there awhile, and then the defendant Aldershof was taken home. Following this Kennedy and Gudenkauf went to Derby, Kansas, where Kennedy's vehicle was involved in an accident. The vehicle was impounded and searched for objects. The police found Debbie's checkbook in the jeep. The checkbook had been in her purse at the time it was stolen earlier that evening. The following day the two purses were recovered at the defendant's house. Defendant was later charged with robbery. Defendant was tried and convicted by a jury and has appealed to this court.
The defendant has raised seven points on this appeal. Points one through four essentially present the same basic issue: Whether there was substantial evidence to support the jury's verdict of guilty of robbery. The defendant contends in substance that since the undisputed evidence shows that no force or threat was used in the taking of the purses and that the purses were taken by stealth, the crime was at most theft, not robbery. The defendant maintains that any force or violence in the case came after the purses had already been stolen when the struggle between Christy Razook and the thief occurred in the parking lot for recovery of the purses. It is the position of the state that to prove robbery it is sufficient if the force used is contemporaneous with the taking of the property. Here, the prosecutor argues, the taking was still in progress when the struggle occurred between the victim and her assailant in the parking lot. Essentially it is the state's position that the taking of the two purses in the present case was still underway when the violence occurred. Hence the defendant was guilty of robbery.
The contentions of the parties require us to examine carefully the inherent nature of robbery as distinguished from theft or larceny. K.S.A. 21-3426 defines robbery as 'the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.' To establish the charge of robbery the state must prove that there was a taking of property from the person or presence of the victim and that such taking was either by threat of bodily harm or by force. The crime of theft is provided for in K.S.A. 21-3701. Section (a) of 21-3701 states in substance that theft is the obtaining or exerting of unauthorized control over property with intent to deprive the owner permanently of the possession, use, or benefit of his property. This state has long recognized that robbery and theft (formerly termed larceny) are kindred crimes. In State v. Segermond, 40 Kan. 107, 108, 19 P. 370, 371, this court accepted the definition of robbery as being 'larceny committed by violence of the person of one put in fear.' In Guffey v. Casualty Co., 109 Kan. 61, 197 P. 1098, Syl. 2, the court held that: 'Robbery includes larceny and may be deemed forcible larceny, and in order to constitute it there must be an intent to deprive the owner of the property taken, not temporarily, but permanently.' In State v. Russell, 217 Kan. 481, 536 P.2d 1392, we held that robbery and theft are kindred crimes and the elements constituting theft are necessarily included in robbery.
For centuries the rule followed in England and later in the United States has been that in order for the defendant to be guilty of robbery it is essential that the prosecution prove that the defendant took the property by means of force or violence or by putting the victim in fear. The force or intimidation employed is the gist of the offense. Furthermore, the general rule is that the violence or intimidation must precede or be concomitant or contemporaneous with the taking. Violence or intimidation by the thief subsequent to the taking will not render the act robbery. In 4 Bl.Comm. 243, Blackstone, to emphasize that for robbery the larceny must be accomplished by violence or intimidation, said:
The general rule is recognized with many cases cited in 77 C.J.S. Robbery § 11 and 67 Am.Jur.2d, Robbery, § 26. A comprehensive annotation on the subject may be found in 58 A.L.R. 656.
In State v. Miller, 53 Kan. 324, 36 P. 751, this court stated the general rule in Syl. 1 in the following language:
In Miller the factual circumstances were stated in the opinion to be as follows:
"That on the evening of the 26th day of August, 1893, the defendant came into the laundry of the complaining witness, at about 10 o'clock at night, to get a shirt he had left there, and laid the check for the shirt down on the counter, which the complaining witness took up, and got the shirt, and laid it on the counter; that the defendant then took out a quarter and laid it on the counter; that ht complaining witness took the quarter, and put it in the money drawer, and took out 5 cents in change, and laid it on the counter; that the defendant then reached over the counter and grabbed the money of the complaining witness in the drawer; that thereupon the complaining witness caught his hand containing the money, and then the defendant said, 'Let go of me, you son of a bitch;' and the defendant then cut the complaining witness on the hand with a knife; that the complaining witness then let go of him, and the defendant ran to get out of the door; that the complaining witness ran around the counter and caught the defendant by the coat...
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State v. Long
...escape and therefore was not sufficient to constitute a taking by force as required by K.S.A. 21-3426. Relying upon State v. Aldershof, 220 Kan. 798, 556 P.2d 371 (1976); State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976); and State v. Miller, 53 Kan. 324, 36 P. 751 (1894), the Court of Appe......
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...Aplee. Br. at 30. In particular, the government points to the following statement made by the Kansas Supreme Court in State v. Aldershof, 220 Kan. 798, 556 P.2d 371 (1976) :[T]o constitute the crime of robbery by forcibly taking money from the person of its owner, it is necessary that the v......
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...that robbery convictions were improper where force was not used "prior to or while taking" the property) 3; State v. Aldershof, 220 Kan. 798, 556 P.2d 371, 375 (1976) (stating that "robbery is not committed where the thief has gained peaceable possession of the property and uses no violence......
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