delivered the opinion of the court.
The following errors are assigned:
“First: The court erred in entering judgment on the verdict on November 21, 1925, because the accused was then entitled to be forever discharged from prosecution for the offense for which he was indicted.
“Second: The court erred in overruling the motion of the accused to set aside the verdict as contrary to the law and the evidence, because the evidence shows that there was no robbery or attempted robbery by the accused.
“Third: The court erred in admitting parol evidence of Zimmer and Carey as to the contents of the time card.”
Section 8 of the Constitution guarantees to everyone accused of crime a “speedy trial.” Similar provisions, constitutional or statutory, exist in most, if not all, of the States. They are said to be based on the English habeas corpus act. Beale’s Crim. Pl. & Pr., sec. 212.
In
In re Begerow,
This right of personal liberty, of freedom from oppression under color of the law, acquired at such a price, has been carefully safeguarded by the Constitution of this State and has constituted a part of its Bill of Rights from the earliest history of the Commonwealth, and its enforcement is not less important today than it was then. The provision, however, must have a reasonable interpretation. A “speedy trial” does not entitle the accused to an immediate trial. The State is entitled to a reasonable opportunity to fairly prosecute its charge against the accused. All that can be asked is that the trial shall take place as soon as practicable after the indictment is found and the State has had a reasonable opportunity to prepare for the trial. Any time after this, arising from negligence or laches on the part of the prosecution, without fault or participation on the part of the accused and without his consent, is a violation of the constitutional provision. The provision, however, as we shall see, is not self-operative. It may be claimed, or it may be waived.
What constitutes a “speedy trial” within the meaning of the Constitution has been interpreted by the legislature in section 4926 of the Code, the substance of which has long been a part of the statute law of this State. That section declares: “Every person against whom an indictment is found charging a felony and held in any court for trial, whether he be in custody or not, shall be forever discharged from
This legislative interpretation has often been approved by this court.
Commonwealth
v.
Adcock,
8 Gratt. (49 Va.) 661;
Brown
v.
Epps,
The section quoted affords protection against two very grave wrongs; unnecessary imprisonment and unnecessary delay in bringing the accused to trial, whether in custody or not. At present we have to deal only with the latter. The statute gives the Commonwealth three regular terms of a circuit court after the accused is held for trial within which the Commonwealth may afford such trial.
*
The term at which the indictment
It is earnestly insisted that the trial mentioned in the section must be a completed trial in which final judgment must be entered not later than during the third term aforesaid. Many cases have been cited defining the word “trial,” but they throw little light on the meaning of the word as used in the section quoted. The object of the statute is to secure a “speedy trial,” apd where the accused is actually brought to trial within the time required by the statute, but from some adventitious cause, without fault on the part of the Commonwealth, or where a further delay for a reasonable time is necessary to consider some motion or application of the accused, so that final judgment cannot be entered during such term, the statute has been sufficiently complied with. In enumerating certain exceptions to the operation of the statute, it was not intended to exclude others of a like nature, nor delays made necessary by motions or other applications of the accused. Wadley v. Commonwealth, supra.
In the instant case the delay between the rendition of the verdict and the final judgment was thirty-three months, and the record discloses no reason
In
Brown
v.
Epes,
In
Kibler
v.
Commonwealth,
In 8 R. C. L. 74, it is said: “The right of the accused to a discharge for the failure of the prosecution to put him on trial within the required time may be waived by his own conduct. If he does not make a demand for a trial * * or if he does not make some kind of an effort to secure a speedy trial, he will not be in a position to demand a discharge because of delay in the prosecution.” To the same effect see note,
In a note to Head v. State, 44 L. R. A. (N. S.) 871, a number of cases are cited for the proposition that “one accused of crime will not be entitled to a discharge because of delay in prosecution, unless it appears that he has either made a demand for a trial, or resisted a continuance of the case, or at least made some other effort to secure a speedy trial.”
The first assignment of error must, therefore, be overruled.
On the motion to set aside the verdict, the facts are that the accused had worked for the Royal Guano Company for two days and a half at $2.00 a day when he was discharged by his walking boss. He thereupon demanded immediate payment of the amount due him, but was told that Saturday was pay day and that he would have to return on Saturday to get his money, and he was ordered off the premises. He objected to returning on Saturday because it would entail the loss of a day, and further because he thought that if he was discharged he was entitled to immediate payment for
Our statute does not define robbery, so that we have to look to the common law for the definition. Code, sec. 2.
“Robbery is an aggravated form of larceny, but is treated as a distinctive crime. It is the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.” Clark’s Crim. Law (2nd ed.), page 323. See also
Houston
v.
Commonwealth, 87
Va. 257,
In addition to force or threats there must also be the elements of larceny. But there can be no
In Jordan v. Commonwealth, 25 Gratt (66 Va.) 943, 948, it is said: “It is not essential that the person taking shall intend to appropriate the same to his own use. It is sufficient that his purpose is to deprive the owner wholly of them. For although a taking lucri causa is larceny, a taking in order to deprive the owner of his property is equally so.”
The taking must, however, be animo furandi. Now what is this animus furandi? It is generally translated as “an intent to steal.” But what is an intent to steal? It is an intent to feloniously deprive the owner permanently of his property. But “feloniously” in this connection simply means “with criminal intent.” Wolverton v. Commonwealth, 75 Va. 909. So that, to constitute larceny, the taking and carrying away of the property of another must be done with criminal intent, and this is the animus furandi referred to in the decided eases. If A, with criminal intent, takes the pistol of B, and breaks it to pieces, so that it is worthless, A is guilty of the larceny of B’s pistol. If, however, the pistol is the property of A, or if A, in good faith, believes it belongs to him, although the taking is by trespass, yet he is not guilty of larceny by destroying it, because there was no criminal intent on A’s part to deprive B permanently of a pistol that belonged to him, but to destroy what A, in good faith, believed to be his own property. The rule is not difficult of application to specific tangible personal property. If A has title to it, or honestly believes he has, the taking by force, is neither larceny nor robbery.
The cases so holding are so numerous that it is not practical to cite them, but many of them are cited in 10 L. R. A. (N. S.) 744, 23 R. C. L. 1144, 13 A. L. R. 142 and 151, 24 Am. & Eng. Ency. Law (2d ed.) 1004, 34 Cyc. 1797. See also 2 Bish. New Crim. Law, sec. 1162a.
The basis of these decisions is the lack of a criminal intent, as there can be no
animus furandi,
or criminal intent, where the property is taken under a
bona fide
claim of right. The cases are almost unanimous in so holding.
Holland
v.
State, 8
Ga. App. 202,
Usually the question of
bona fides
is one for the jury, but where, as in the instant case, the facts are undisputed, and only one conclusion could be fairly drawn therefrom by reasonable men, it is a question of law for the court. If different conclusions', however, may be fairly drawn by reasonable men from established or admitted facts, the question is still one for the jury under proper instructions from the court.
Davis
v.
McCall,
The judge of the trial court took the view that the debt owing to the accused was not due until Saturday following the day of his discharge, and, as the demand was made before the maturity of his claim, it was a case of robbery. There is but little evidence tending to show that the accused knew that Saturday was pay day, but even if he had known that Saturday was the regular pay day, he had the right to suppose that that applied only to employees in the continued employment of the company, and not those who were discharged, and he testified that as he was discharged on Wednesday and ordered off the premises, he in good faith believed that he was entitled to his pay when his connection with the company was severed. This belief of -the accused was entirely reasonable, and, ■even if unsound, should not of itself have furnished
The accused never at any time demanded the payment of anything except “his wages up to the time he was discharged.” When he held up the superintendent, they went together to the office to “find out from accused’s time card how much he had earned.” The time card was produced, and the superintendent paid him $5.00.
The Commonwealth concedes that, at the first trial, it was shown that the amount due was $5.00. The second trial took place more than a year after the offense was committed, and the Commonwealth was permitted.to prove, over the objection of the accused, that the “witness does not remember the exact amount, but his recollection is that the amount of money that Butts had earned up to the time of his discharge was a few cents under $5.00.” It further appears that the time card was at the plant of the Royster Company and could probably be produced in an hour. Counsel for the accused objected to the testimony of the witness as to his recollection of the contents of the time card, and offered “to wait until some one could be sent to the plant for the time card, and either proceed with the trial and allow the same to be introduced later, or halt the trial until the card could be produced;” but the court declined the offer, and overruled the objection. The trial court based its ruling on the failure of the accused to make the objection sooner, while another witness was on the stand. The failure to make the objection sooner was satisfactorily accounted for, but the explanation is too lengthy to be here inserted. The ruling of the trial court was plainly erroneous.
Observation and experience have taught us that human memory is very frail, and that the unaided testimony of witnesses is a very unsatisfactory means of establishing facts of long standing. This is especially true when a witness undertakes to give his recollection •of the contents of writings, to relate conversations of •others, or to give dates or figures. Decided cases, practically without dissent, reaffirm the rule announced by Lord Tenterden nearly a century ago, when .he ■said in substance: “I have always acted most strictly on the rule that what is in writing shall only be proved by the writing itself. My experience has taught me the extreme danger of relying on the recollection of witnesses, however honest, as to the contents of written instruments; they may be so easily misled that I think the purposes of justice require the strict enforcement of the rule.” Vincent v. Cole, 1 Moody & Malkin, 258, 7 L. J. 130.
We are of opinion that the accused waived his constitutional right to a “speedy trial,” but that the trial court erred in receiving parol evidence of the contents of the time card aforesaid, and also in not setting
Reversed.
Notes
The trial in the instant case was in the circuit court.