State v. Mcallister
| Citation | 65 W.Va. 97,63 S.E. 758 |
| Court | Supreme Court of West Virginia |
| Decision Date | 02 February 1909 |
| Parties | state . v. McAllister. |
Robbery, at common law, as defined by text-writers, is the felonious and forcible taking from the person of another of goods or money to any value, by violence or putting in fear.
[Ed. Note.—For other cases, see Robbery, Cent. Dig. § 1; Dec. Dig. § l.»
For other definitions, see Words and Phrases, vol. 7, pp. 0258-6264; vol. 8, p. 7792.]
Under the Constitution and laws of this state, a crime can be prosecuted and punished only in the state and county where the alleged offense was committed.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 220; Dec. Dig. § 108.*]
The defendant, indicted jointly with others, was tried and convicted of robbing one Wallace of two checks, one drawn by Wallace, to which he signed the name of his wife, payable to one York; the other by said York, payable to one Curry, the latter being delivered by York to Wallace in exchange for the former, these transactions taking place at York's store in Wayne county, in the presence of defendant and those indicted with him, who, armed with dangerous weapons, had arrested Wallace in Kentucky, and taken him there to procure the money or check; but the check was not actually delivered until after Wallace had been taken back to Kentucky by his captors, where, as directed by them, Wallace delivered it to a third person, to be delivered to Curry, in whose favor it was drawn. Held, that if defendant is guilty of robbery, the crime was committed in Kentucky, where the check of York was reduced to actual possession.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 220; Dec. Dig. § 108.*]
By the "taking, " necessary in the offense of robbery, is implied that the robber must be in the possession of the thing taken, and the offense is not actually completed without such taking, and the thing taken must be of some value, and taken from the peaceable possession of the owner; the gist of the action being the force and terror employed in obtaining it.
[Ed. Note.—For other cases, see Robbery, Cent. Dig. § 5; Dec. Dig. § 5.*
For other definitions, see Words and Phrases, vol. 8, pp. 6860-6863.]
Quaere, Does the act of obtaining a check from a person under duress, as proven in this case, constitute the crime of robbery? The question discussed, and authorities cited, but not decided.
(Syllabus by the Court.)
Error to Circuit Court, Wayne County.
William McAllister was indicted, with certain other defendants, for robbery, and on conviction brings error. Reversed.
W. E. Chilton, W. W. Marcum, and Napier & Meek, for plaintiff in error.
Wm. G. Conley and Wm. Fry, for the State.
MILLER, P. The defendant was indicted jointly with Morgan Curry, Bob Dillon, and Harrison Dillon. The first count charged that, being armed with dangerous and deadly weapons, they feloniously assaulted John B. Wallace, and did feloniously and violently steal from him, and take and carry away, a certain check drawn by Sarah A. Wallace, to the order of John Y. York, on the First National Bank of Louisa, Ky., for the sum of $200, and of the value of $200 of the goods and chattels, property and check, of the said John B. Wallace. The second count charged the same persons with stealing, in the same manner, from said John B. Wallace a certain other check made by John Y. York, to the order of Thomas Curry, for the like sum and value of $200, payable at the Big Sandy National Bank, of Catlettsburg, Ky. The third count charged them with stealing from said Wallace in like manner $200 in gold and silver certificates and greenbacks, and in gold and silver coin, of the value of $200. Upon the trial of the issue joined, upon the plea of not guilty, the jury found McAllister guilty of the felony as charged in said indictment, upon which verdict judgment of imprisonment was pronounced against him that he be imprisoned in the penitentiary at Moundsville for the term of 10 years.
All points of error relied on here are involved in the answer to two questions: First, is the prisoner guilty of the offense of which he was convicted? and, second, if he is, was the crime committed within Wayne county, W. Va? There was no attempt to prove the robbery or theft charged in the third count, and no conviction could be sustained thereon. The facts upon which the state relied to sustain conviction upon the first and second counts were substantially these: John B. Wallace, charged to have been robbed, about January 1, 1905, was residing with his wife near Louisa, Ky., near the Wayne county West Virginia line, where he was keeping what is called in the record a "blind tiger, " a place for the illicit sale of intoxicating liquors. Morgan Curry, Bill Little, and Tom Curry, armed with rifles, called and demanded of Wallace whisky on credit. Wallace at first refused them the whisky, but finally gave them one bottle. They then went away, but returned shortly, and demanded more whisky, He then gave them three bottles and on a third visit he gave them another bottle. They again departed, but returned, demanding more liquor. Wallace and wife by this time had locked themselves up in their home, and refused to give out any more liquor. Numerous shots were then exchanged between Wallace, or Wallace's wife, and their assailants, one of the balls discharged by Mrs. Wallace, it is said, ' hitting Tom Curry, a brother of Morgan Curry, in the leg. Mrs. Wallace was also hit in the leg by a ball from one of the guns of her assailants. Night coming on, Wallace and wife made their escape across the river to Louisa, and some time during the night Wallace, having procured a warrant, arrested Lewis Dillon, and had him locked up in jail at Louisa. Early the next morning Morgan Curry, Bob Dillon, the defendant McAllister, son-in-law of Lewis Dillon, and others, most of them armed with Winchesters and shotguns, were found at a hotel in Louisa, whither they had gone some time during the night, and, seeing Wallace on the street near the hotel, Morgan Curry rushed out with his rifle, followed by McAllister and their confederates, called upon Wallace to hold up his hands, and informed him that he was under arrest. Handcuffs were also put upon him, and he was informed by one of the crowd that they were going to hang him, and they started with him in the direction of the falls of Tug River. After they had gone some distance Wallace persuaded them to take the handcuffs off, and they proceeded with him to the home of Lewis Dillon, where dinner was procured. On the way to Lewis* Dillon's Wallace says they planned his execution. That during the journey, or perhaps after they reached Dillon's residence, he (Wallace) proposed to buy his liberty, and was asked by one of his. captors how much money he had. That he answered he had $400, and proposed to give them $200 if they would turn him loose, which they did not agree to do at first, but afterwards they inquired of him if he could get the money. He answered he thought he could get it from John Frazier nearby, but, finding that Frazier was not at home, he suggested that he might get it from John Y. York, in Wayne county, and they then led him across the river into Wayne county, W. Va., to the store of said York. When they reached York's store, Wallace explained to him his situation, told York his life was threatened by his armed captors, and that unless he could raise $200 for them, they threatened to hang or shoot him. Under these circumstances York was persuaded to make his check payable to Thomas Curry described in the second count of the indictment, giving it to Wallace in exchange for the check of Sarah A. Wallace, described in the first count of the indictment Having thus obtained this check of York, Wallace was led back by Curry and his other captors across the Sandy river into Kentucky, to the home of one Stanley Chafin, a notarypublic, where according to Wallace's evidence, corroborated by the evidence of other witnesses, including the notary himself, he was required to take an oath not to prosecute these desperadoes for anything that had occurred, and at which time and place Wallace delivered over, either, as he testified, to Morgan Curry, or, as the other evidence tends to show, to Jim Stilton, the check obtained from York, payable to Thomas Curry. While Wallace, in his testimony, intimates that he may have given York's check to Morgan Curry, at the former's store, or on the way back before crossing the river into Kentucky, he is not sure that he did so. One of the defendant's witnesses testified that while still in Wayne county, W. Va., Wallace offered the check to Curry, but that Curry refused to receive it. At one place in Wallace's testimony, he says, At another place, on re-direct examination, in reply to the question, "I believe you stated that your best recollection was that you delivered this check up to Morgan Curry before you crossed the river into Kentucky?" he answered, "Yes, sir; that is my best recollection about it." But he had not stated in his previous testimony that it was his best recollection that he had thus delivered this check to Morgan Curry. He had said on examination in chief that he had delivered his wife's check for $200 to York at York's store, but on further cross-examination he distinctly admits that he is not positive where it was he gave the check to Curry, whether in West Virginia or in Kentucky. On the other hand, the evidence of Stanley Chafin, a notary public, McAllister, and the testimony of other witnesses shows conclusively that York's check was...
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