16 Ga. App. 110 | Ga. Ct. App. | 1915
Tom Bowen was convicted under an indictment charging him with robbery by force, alleged to have been committed in taking a watch and certain other property from the person of J. A. Bozier. From the testimony for the State it appeared, that between 1 and 2 o’clock at night, on December 27, 1913, Bozier engaged the defendant (who was a cab-driver) to drive him in cab No. 89 from a club on Marietta street, in the city of Atlanta, to the Brittain Hotel, and directed him to go by a store owned by Bozier and his brother. At the store Bozier opened the door and invited the defendant to come in, as the night was very cold, and in his presence opened a safe and took from it ten one-dollar bills. Thereafter Bozier re-entered the cab and instructed the defendant to take him to a house on Edgewood avenue, which he entered, and after a minute or two he returned to the street, got into the cab, and requested the defendant to drive to “the hotel.” The cab was driven up Edgewood avenue and Marietta street to Broad street, and out Broad street to Alabama street, and there it stopped, and the defendant turned to Bozier, who was then considerably under the influence of liquor, and said, “It was a little bit dangerous for me to drive over this way, I have been having some trouble over here.” Bozier replied, “I don’t reckon there is any harm in it,” but
Policeman Clack testified as follows: “I remember the night Mr. Eozier was assaulted. I saw him in the cab that night about 2 or little after 2 o’clock at Broad and Alabama streets, in Tom Bowen’s cab, No. 89. I am positive it was Tom Bowen; I don’t know how long I have known him. There was a man in the cab at the time, but I didn’t know it was Mr. Eozier. He drove the cab up and straight across the sidewalk at Broad and Alabama, and I never said anything to him. I stopped there a moment. I never said anything to him. I walked on to Mitchell street and came back, and he was still standing there. I says, ‘Drive on somewhere;’ and he turned around and drove back across the viaduct. Mr. Eozier was in cab 89 at Broad and Alabama streets at 2 o’clock or a little after. I took the driver to be Tom Bowen.” It will be observed that this witness first stated that he saw Eozier in Tom Bowen’s c'ab, No. 89, about 2 o’clock at Broad and Alabama streets, and also stated that there “was a man in the cab at the time, but he didn’t know it was Mr. Eozier;” and on cross-examination he said: “Mr. Eozier was in cab 89 at Broad and Alabama streets at 2 o’clock or a little after.” Evidently the witness meant by this testimony that when he saw Eozier in the cab he did not know who he was — that is, did not know his name, but he recognized the prosecutor, Eozier, as the same man, and then testified the man he had seen in the cab was Eozier. There was further evidence that 89 was the number of Tom Bowen’s cab, and evidence that Eozier, after his discharge from the hospital, went with certain policemen to the place where he was found, and entered three or four houses near that point, some of which were exactly alike, and finally identified, without .aid, the house where he obtained the
The motion for a new trial is based on the general grounds only, and it is insisted by the plaintiff in error that the verdict finding him guilty of robbery was unauthorized because the testimony for the State showed that the property was taken without the knowledge of the owner and while he was unconscious, and therefore that the offense was larceny from the person and not robbery. Prior to 1903 our code (Penal Code of 1895, § 151) defined robbery as “the wrongful, fraudulent and violent taking of money, goods or
Under the common law, and under the decisions of our Supreme Court relative to robbery by force or intimidation, it is not essen
In Smith v. State, 117 Ga. 320 (43 S. E. 736, 97 Am. St. E. 165), it was held: “Where a purse secured by a steel chain wrapped around the owner’s finger is suddenly snatched by one intending to steal the same, and the force used is sufficient to break the chain and injure the owner’s finger, the offense is robbery, and not larceny, from the person.” In the opinion delivered by Justice Lamar in that case it was said: “The evidence shows that the article was so attached as to afford considerable resistance; the violence necessary to secure the purse was sufficient to break a steel chain, and inflicted injury on the person robbed. Here there was open force and violence, resistance by the owner, and injury to the person; so that it could not 'have been merely larceny from the person, but was robbery.” The ruling in that case was made before the passage of the amendment of 1903, making “snatching” robbery under certain circumstances. In Long v. State, 12 Ga. 293 (9), it was said: “Actual force, in our definition of robbery, implies personal violence. If there is any injury done to the person, or if there is a struggle to retain possession of the property, before it is taken, it is the force of our Penal Code.” In Pride v. State, 125 Ga. 748 (54 S. E. 686), the Supreme Court said: “The offense of robbery, as defined in section 151 as amended [Penal Code of 1910, § 148], consists in the wrongful, fraudulent, and violent taking of money, etc., from the person of another, whether such a taking be accomplished by force, intimidation, or the sudden snatching without the consent of the owner or person in possession. . . The sudden snatching from the victim with his knowledge (italics ours) is violence in the sense of this word as used in the amending act. In
The accused in this case was charged with robbery, for that, on a day named, “with force and arms [he] did wrongfully, fraudulently, and violently, by force and intimidation, take from the person of J. A. Eozier, without his consent and with intent to steal the same,” one open-face gold watch and other property described. It is apparent, then, that the accused was not indicted for the sudden snatching, taking, and carrying away of property declared by the act of 1903 to be robbery, but was indicted under that part of section 148 of the Penal Code (1910) which defines robbery to be the wrongful, fraudulent, and violent taking of money, goods or chattels from the person of another by force or intimidation. In Pride v. State, supra, Justice Evans, speaking for the court, said, that “where the property was suddenly taken by the thief from the owner, who was off his guard, and no force was used by the thief other than that which was necessary in possessing himself of the article taken, he would nevertheless be guilty of robbery, under the provisions of section 148 as amended in 1903, as, since the passage of that amendment, the offense may be committed though no. force be exerted beyond the effort of the robber to transfer the property from the owner to his own possession. As already said, this court in Williams v. State, supra, held that since the amendment of 1903, in order to prove a ease of robbery by the sudden taking and carrying away of the property of another, without his consent, it is only necessary to show that the person robbed was conscious that something was being taken from him, and for some reason he was unable to prevent it, and it is said that “the only difference now between robbery of this class [by snatching] and
It appears, then, to be well settled that where one is prosecuted for robbery by force, and it appears that the property taken from the person of the victim was attached to his clothes, and in removing it the thief exerted force, — as by breaking a chain connecting the property with the person, — such force is sufficient to make the crime robbery rather than larceny from the person; and this is true even though the victim was drunk or unconscious at the time; and where injury or violence is inflicted upon the person of the owner to effect the taking, it is immaterial, in a prosecution for robbery by force, whether he was conscious of the taking or not. In one ease, where a heavy diamond pin, with a corkscrew stalk, which was twisted and strongly fastened in a lady’s hair, was snatched out, and part of the hair torn away, the crime was held to be robbery. 1 Leach, 335. In another case one who tore an ear-ring from the ear, and in so doing lacerated the flesh, was found guilty of robbery. 1 Leach, 320. In 24 Am. & Eng. Enc. L. (2d ed.), supra, it is said: “While it is not robbery to abstract money from the person of one drunk or unconscious, it is otherwise if the intoxicated person is beaten and bruised.” As was said by Justice Cobb in Moran v. State, supra, where such force is used, “it avails the accused nothing if the person robbed makes no resistance, or is even unconscious at the time that a robbery is being perpetrated.” While the evidence in this case discloses that the person robbed became unconscious, so far as he was able to assert, before any violence was done to his person and before any of his property was removed therefrom, it further appears that when he was discovered by the policeman some hours later, he had been terribly beaten, his jaw broken, one eye destroyed, and his watch and other property gone, and that there was still attached to his person a small remnant of his watch-chain, from which his watch had been broken off. The presence of the piece of broken watch-chain, together with the physical injuries inflicted upon his person, was sufficient, under the well-recognized rules referred to above, to authorize the jury to conclude that force had been used in depriving the injured man of his property, and especially in detaching or tearing away from his person his watch. The force exerted by the robber in
Judgment affirmed.