State v. Ferguson, 15126

Decision Date18 December 1981
Docket NumberNo. 15126,15126
Citation168 W.Va. 684,285 S.E.2d 448
PartiesSTATE of West Virginia v. George Thomas FERGUSON.
CourtWest Virginia Supreme Court

Syllabus by the Court

"The animus furandi, or the intent to take and deprive another of his property, is an essential element in the crimes of robbery and larceny." Syl. pt. 2, State v. McCoy, 63 W.Va. 69, 59 S.E. 758 (1907).

Millard E. Jewell, Williamson, for appellant.

Chauncey H. Browning, Atty. Gen., Gregory W. Bailey, Deputy Atty. Gen., Charleston, for appellee.

PER CURIAM:

Appellant George Thomas Ferguson was convicted of armed robbery in the Circuit Court of Mingo County and sentenced to ten years in the penitentiary. For the reasons set forth below, we reverse.

On June 16, 1978, Frank Newsome, Sr. and his wife took their car to a garage for repair. When they returned home his wife informed him that she had inadvertently left her purse in the car to be repaired so Mr. Newsome drove back to retrieve it. He placed the purse on the seat of his truck next to him and started home. On the way he picked up the appellant and a female juvenile who were hitchhiking together.

During the ride the female sat next to Mr. Newsome and the appellant rode next to the passenger door. Although there was no conversation during the ride, Mr. Newsome did testify that they were elbowing one another. The two rode for approximately one and a half miles before the appellant said that they would get out. When Mr. Newsome pulled over to the side of the road and stopped the truck, the appellant got out and began walking up the road; the girl grabbed Mrs. Newsome's purse and ran.

Mr. Newsome pursued her on foot. He testified that he and the girl were struggling over the purse and he was about to regain possession of it when the appellant returned and joined in the struggle by jerking the girl away. She ran into a nearby trailer still carrying the purse and the appellant and Mr. Newsome continued to struggle for several minutes. During the course of the scuffle, the appellant asked what was going on and Mr. Newsome replied, "What have you done trying to get my wife's pocketbook?" The appellant answered, "Sonofabitch, you will get it back." At this point the appellant broke away and Mr. Newsome returned to his truck and unsuccessfully followed the girl. He testified that the appellant never had the purse in his hands; that he was not afraid of the appellant until after it was all over; and that he was not in fear that either the appellant or the girl was going to take anything from him until she actually grabbed the purse.

The appellant testified that he had left the truck and was walking toward his girlfriend's house when he heard the girl yell at Mr. Newsome to release her. He ran back to where the two were struggling and saw Mr. Newsome in the truck pulling on her. Assuming she was being molested, the appellant pulled her away and she ran. He testified that he knew nothing about the purse being stolen and denied seeing it in her hands during the struggle.

There was evidence from police officers who investigated the crime that the appellant made a statement to the effect that he did not know the girl was going to take the purse, and that he helped her get loose because he didn't want her to get hurt. A few days after the alleged robbery was committed, the appellant led a third party to the purse so that he could return it to Mr. Newsome. The purse contained between $30 and $38.

The appellant's principal assertion on appeal is that under the facts adduced at trial the State failed to prove that his acts constituted the offense of robbery. W.Va.Code, 61-2-12 [1961] states in part:

"If any person commit, or attempt to commit, robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than ten years. If any person commit, or attempt to commit, a robbery in any other mode or by any other means, except as provided for in the succeeding paragraph of this...

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3 cases
  • State v. Collins
    • United States
    • West Virginia Supreme Court
    • December 21, 1984
    ...there was an unlawful taking of personal property with the intent to permanently deprive the owner of it. See, e.g., State v. Ferguson, W.Va., 285 S.E.2d 448 (1981); State v. Rollins, 142 W.Va. 118, 94 S.E.2d 527 (1956); State v. Morris, 96 W.Va. 291, 122 S.E. 914 (1924); State v. McCoy, 63......
  • State v. Gravely, 15545
    • United States
    • West Virginia Supreme Court
    • December 13, 1982
    ...State ex rel. Vandal v. Adams, 145 W.Va. 566, 569, 115 S.E.2d 489, 490 (1960). However, as this Court stated in State v. Ferguson, 168 W.Va. 684, 285 S.E.2d 448 (1981): "[A]lthough the terms of 'armed' and 'unarmed' have historically been applied to the two types of robbery under the statut......
  • State v. Martin
    • United States
    • West Virginia Supreme Court
    • April 28, 1987
    ...to take and deprive another of his property, is an essential element of the crimes of robbery and larceny." See also State v. Ferguson, 168 W.Va. 684, 285 S.E.2d 448 (1981); State v. Wolfe, --- W.Va. ---, 277 S.E.2d 640 (1981); State v. Hudson, 157 W.Va. 939, 206 S.E.2d 415 (1974). In State......

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