State v. Long

• Decision Date: 13 January 1984
• Docket Number: No. 54158,54158
• Citation: 675 P.2d 832,234 Kan. 580
• Parties: STATE of Kansas, Appellee, v. James L. LONG, Appellant.
• Court: Kansas Supreme Court

Page 832

675 P.2d 832

234 Kan. 580

STATE of Kansas, Appellee, v. James L. LONG, Appellant.

No. 54158.

Supreme Court of Kansas.

Jan. 13, 1984.

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 either precede or be contemporaneous with the taking of the property. A 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. 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.

2. A thief does not obtain the complete, independent and absolute possession and control of the money or property adverse to the rights of the owner necessary to constitute a taking where the taking of the property is immediately resisted by the owner before the thief can remove it from the premises or from the owner's presence.

3. K.S.A. 21-3107(3) requires the trial court to instruct on a lesser offense which may be included in the crime charged when there is evidence introduced to support a conviction of the lesser offense. This duty arises, however, only when there is evidence upon which the accused might reasonably be convicted of the lesser offense.

4. For purposes of K.S.A. 21-3107(2)(a) The crime of theft is an included crime of robbery as a "lesser degree of the same crime," and therefore the trial court is required to instruct the jury on the crime of theft in a prosecution for robbery where there is evidence to support a conviction of theft.

Ray L. Connell, of Connell & Connell, El Dorado, argued the cause and was on the brief for appellant.

Morgan Metcalf, Deputy County Atty., and Robert T. Stephan, Atty. Gen., were on the brief for appellee.

SCHROEDER, Chief Justice:

This case is before the court on a Petition for Review of the decision of the Court of Appeals found at 8 Kan.App.2d 733, 667 P.2d 890 (1983). James L. Long (defendant-appellant) appealed from a jury verdict finding him guilty of robbery (K.S.A. 21-3426). The Court of Appeals reversed and ordered that the appellant be discharged holding the force used by the appellant in leaving the premises where the alleged robbery took place was not sufficient to constitute a taking by force as required by K.S.A. 21-3426 to support a conviction for robbery, and theft (K.S.A. 21-3701) is not a lesser included offense of robbery. The State's Petition for Review was granted by this court.

The facts established by the evidence were summarized in the Court of Appeals opinion as follows:

"... Margo Wolf and her husband reside in rural Butler County, Kansas, and operate a dairy farm there. As a part of that business they maintain a small sale building in which they stock and refrigerate gallon bottles of milk. This building is open to the public. The Wolfs employ an 'honor system' in their business operation at the sale building. It includes the open display of refrigerated milk and a locked, slotted money box mounted on a wall. Customers may enter the sale building, obtain milk and deposit payment in the locked box, thereby eliminating the need for the Wolfs to be present at all times. On the evening of February 17, 1981, Mrs. Wolf was in an adjacent milk barn filling gallon milk bottles in order to replenish the sale building's supply which the day's business had reduced to two bottles. While there, she observed a car drive up to the sale building. Seeing this, she went to the sale building to inform the customer that in a few minutes she would have more milk available. As she opened the door to the sale building, she observed the defendant crouched in front of the money box. It had been pried open. The defendant had his hands in his pockets. Mrs. Wolf saw a dollar bill lying on the floor beneath the forced money box. She positioned herself in the doorway so as to prevent the defendant from leaving the building. She twice asked the defendant what he was doing, to which he made no response. Instead, the defendant walked toward her, shoved her arm out of the way, forcing himself by her, and proceeded to drive away in his car. Mrs. Wolf noted down defendant's license tag number. The money box had approximately $40 to $45 in currency in it prior to Mrs. Wolf's observation of defendant crouched near the box. Immediately after the incident there was nothing in the box except some small change. The defendant admitted that he 'brushed by' Mrs. Wolf as he exited the sale building." 8 Kan.App. at 733-34, 667 P.2d 890.

In addition to the above facts, evidence was presented that shortly before the appellant's arrival at the dairy Mrs. Wolf went into the sale building to check on the supply of milk. Apparently there was nothing unusual about the condition of the money box at that time. As the supply of milk was getting low, Mrs. Wolf went to another part of the dairy to obtain more. While there she observed a customer who was carrying a baby enter the sale building and leave in a very short length of time with a gallon of milk. When the appellant arrived Mrs. Wolf went to the sale building to inform him more milk would be available, at which time she observed him in front of the pried-open money box.

The appellant testified he went to the dairy to purchase milk as he had done on several previous occasions. When he entered the sale building he saw the money box had been pried open. He was just looking at it when Mrs. Wolf came in and became outraged. Panicking, he ducked under her arm held across the doorway and fled in his car. He denied taking any money from the dairy.

The appellant raised two points on appeal. He first argued the force used against Mrs. Wolf occurred after the taking to effect his 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 Appeals concluded there was not a taking by force as required to support the appellant's conviction for robbery, reasoning:

"In the case before us, we assume, for the purpose of our decision, defendant took money from the money box and his shoving of Mrs. Wolf out of his way when exiting the sale building constituted the use of force. However, the evidence wholly fails to support a conclusion that defendant's use of force preceded or was contemporaneous to defendant's acquisition of possession of money from the money box. The 'taking,' if it occurred, was accomplished and completed before Mrs. Wolf observed defendant. It neither was preceded by nor occurred contemporaneously with defendant's use of force. Defendant's conviction for robbery must be reversed. 8 Kan.App.2d at 735, 667 P.2d 890.

A complete review of the cases relied upon by the Court of Appeals and other authorities addressing this issue is warranted in order to properly determine this issue.

The crime of robbery is defined in K.S.A. 21-3426, which provides:

"Robbery is 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 there was a taking of the property from the person or presence of the victim and that such taking was either by threat of bodily harm or by force. State v. Aldershof, 220 Kan. at 800, 556 P.2d 371. In Aldershof, 220 Kan. at 803, 556 P.2d 371, this court held:

[T]o 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 and 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. We believe that the test should be whether or not the taking of the property has been completed at the time the force or threat is used by the defendant."

This position is in accord with the general rule followed in most jurisdictions. See Annot., 58 A.L.R. 656; Annot., 93 A.L.R.3d 643; 2 Wharton's Criminal Law and Procedure § 559 (1957).

The question then is whether the taking of the money from the money box was completed prior to the appellant's exit from the sale building. No established set of guidelines exists which can be readily applied for a quick and easy answer to this question. The court in Aldershof stated "[t]his must of necessity be determined from the factual circumstances presented in the particular case before the court." 220 Kan. at 803, 556 P.2d 371. The decisions of some states holding the force used was or was not prior to or contemporaneous with the taking are conflicting, however, because of uncertainty as to when the taking is completed. See Annot., 58 A.L.R. 656, § 3; 2 Wharton's Criminal Law and Procedure § 559, p. 265; 67 Am.Jur.2d, Robbery § 26.

Prior Kansas cases are not in accord with one another and as such do not provide much assistance in determining when a taking is completed. Some of these cases imply a taking is not complete until the property has been removed from the premises of the owner, whereas others indicate the taking is accomplished at the moment the thief, with the intent to steal, removes the property from its customary location.

In Aldershof the defendant snatched two purses from a table in a tavern during a power failure. One of the victims pursued the defendant into the tavern parking lot where the defendant struck her. We held the defendant was a sneak thief and could not be guilty of robbery because "the taking of the property had been completed when the thief snatched the purses and left the premises of the tavern." (Emphasis added.) Any violence used thereafter by the thief in an attempt to prevent the...