Thomas v. State

• Decision Date: 12 February 1891
• Citation: 91 Ala. 34,9 So. 81
• Parties: THOMAS v. STATE.
• Court: Alabama Supreme Court

9 So. 81

91 Ala. 34

THOMAS v. STATE.

Supreme Court of Alabama

February 12, 1891

Appeal from criminal court, Jefferson county; SAMUEL E. GREENE Judge.

The defendant in this case, appellant here, was indicted, tried and convicted for robbery.

W L. Martin, Atty. Gen., for the State.

McCLELLAN J.

The indictment in this case is substantially in the form prescribed by the Code for the offense of robbery, and is sufficient. Code, p. 276, form 76; Chappell v State, 52 Ala. 359. The evidence on the trial was without conflict to the effect that the possession of the property, the subject-matter of the alleged robbery, was obtained from the prosecutor by artifice, and without violence or putting in fear; and that, after the possession had been thus peaceably obtained, it was retained, and the property carried away, by putting the prosecutor in such fear as prevented any effort on his part to regain it. The bill of exceptions sets forth that the prosecutor and his brother, aged, respectively, 15 and 13 years, the former having a gun, met three men, including the defendant, in a road or street in the suburbs of Birmingham. "Two of the men passed on, while the defendant stopped and engaged in conversation with Robert Yarborough [the prosecutor] in regard to purchasing the gun that said Robert Yarborough had in his hand. Said Yarborough voluntarily handed the said gun to the defendant for examination, in obedience to the request of the defendant to be allowed to examine it, and the said defendant conversed with said Robert Yarborough about five minutes in regard to the gun, inquiring how the said gun was operated, and whether it was loaded. Being informed that the gun was loaded, and defendant then stepped back about 10 steps, and said to Yarborough, 'Run, or I will shoot you,' pointing the gun at him." Yarborough did not run, but was frightened, and backed off some distance, and the defendant then ran away with the gun. The jury found the defendant guilty of robbery, and he was adjudged and sentenced accordingly. The rulings of the court on charges requested for the defendant were to the effect that these facts constituted robbery; and whether they did or not is the main inquiry arising on this appeal.

The authorities are well-nigh uniform to the position that the violence or putting in fear which is an essential element of the crime of robbery must precede or be concomitant with the act by which the offender acquires the possession of the property. The offense is against both the person and against property. In so far as it is against the person, it consists in personal violence or personal intimidation; in so far as it is against property, it consists of manucaption animo furandi. If there be violence or putting in fear, however aggravated, without a taking and asportation of property, there may be an assault, or assault and battery, or an assault with intent to rob, but no robbery; on the other hand, if there be a taking by trick or contrivance, and carrying away with felonious intent, but no violence or putting in fear as a means of the caption of another's property, there is a larceny, but no robbery. Com. v. James, Pick. 375. The three essential elements of the offense are felonious intent, force or putting in fear as a means of effectuating the intent, and by that means a taking and carrying away of the property of another from his person or in his presence. In the nature of things, all these elements must concur in point of time, else the act done is not rounded out to the full measure of the capital felony. If force is relied on in proof of the charge, it must be the force by which another is deprived of, and the offender gains, the possession. If putting in fear is relied on, it must be the fear under duress of which the possession is parted with. The taking, as it has been expressed, must be the result of the force or fear; and force or fear which is a consequence, and not the means, of the taking, will not suffice. "The fear of physical ill must come before the relinquishment of the property to the thief, and not after; else the offense is not robbery." 2 Bish. Crim. Law, § 1175. "It may also be observed," says Archibold, "with respect to the taking, that it must not, as it should seem, precede the violence or putting in fear; or, rather, that a subsequent violence or putting in fear will not make a precedent taking, effected clandestinely, or without either violence or putting in fear, amount to robbery." 2 Archb. Crim. Pr. & Pl. p. 1289; also 2 Russ. Crimes, *108; Rex v. Harman, 1 Hale, P. C. 534. "It must appear," says Roscoe, "that the property was taken while the party was under the influence of the fear; for if the property be taken first, and the menaces or threats inducing the fear be used afterwards, it is not robbery." Rosc. Crim. Ev. p. 924. And Mr. Wharton recognizes the same doctrine. 1 Whart. Crim. Law, § 850. The adjudged cases fully support these texts. In an early case the facts were that the prisoner desired the prosecutor to open a gate for him, and, while he was so doing, the prisoner took his purse. The prosecutor, seeing it in the prisoner's hand, demanded it, when the prisoner answered, "Villain, if thou speakest of thy purse, I will pluck thy house over thine ears, and drive thee out of the country, as I did John Somers," and then went away with the purse; and because he did not take it with violence, or put the prosecutor in fear, it was ruled to be larceny, and no robbery, for the words of menace were used after the taking of the purse. Rex v. Harman, 1 Hale, P. C. 534. See, also, Rex v. Grey, 2 East, P. C. 708; and Rex v. Gnosil, 1 Car. & P. 304, in which it is said by GARROW, B.: "To constitute the crime of highway robbery, the force used must be either before or at the time of the taking." In the case of Shinn v. State, 64 Ind. 13, it appeared that an accomplice of the defendant snatched money from the prosecutor, and handed it to the prisoner, who attempted to make off with it, but was pursued and overtaken by the prosecutor, when a tussle ensued between all three of them for the possession of the money. Mere snatching property from another is, by all the authorities, not robbery; hence,...