Commonwealth v. White, No. 97

No. 97 | Lackawanna Cty. Ct. Oy. Term. | Mar 10, 1890

Opinion,

Mb. Chief Justice Paxson:

The defendant was indicted in the court below for the crime of highway robbery. The proof was, that he took a chew of tobacco from a boy, by force. The jury convicted him of robbery. The court below sentenced him to pay a fine of $100, and to undergo an imprisonment in the county jail for one year.

Complaint is made in the first three assignments that the learned judge below erred in his instructions to the jury as to what constituted the offence of robbery. He said: “ At common law, robbery is defined to be the taking of any property from the person of another by force.” See first assignment. The same definition, varied slightly in form, is to be found in those portions of the charge embraced in the second and third assignments. The definition given by the learned judge is inaccurate. What he defines as robbery is at most a trespass, and might not even amount to that. Robbery, at common law, is “ the felonious and forcible taking, from the person of another, of goods or money to any value, by violence and putting him in fear:” 4 Bl. Com., 242. The learned judge has omitted the very gravamen of the offence, viz., the felonious intent.

We also think .it was error to instruct the jury, under the circumstances, that, “ for the purposes of this case, and for the purpose of dealing with the property, you have nothing to do or say about the value of the property.” It is very true that robbery may be committed of a penny as well of a pound, but to say that the jury should give no consideration to the value of the property, for any purpose, was error. They had a right to take it into consideration, in considering the intent with which the act was committed. If it was not done with a felonious intent, it was not robbery; if it was intended as a practical joke, which is at least probable, it was not robbery. And the jury might well have come to the conclusion, had they been properly instructed, that the taking of a pinch of tobacco, of no appreciable value, precluded the idea of a felonious intent.

The main defence upon the trial below was that the whole affair was a joke. The learned judge does not appear to have referred to this in his charge. On the contrary, he stated in his rulings upon the testimony that “ it makes no difference whether the prosecutor thought it a joke or not.” It is very true that a highway robbery cannot be turned into a joke. It is equally true that a mere joke cannot be turned into a highway robbery, and any evidence upon this point should have been submitted to the jury. The defendant was charged with a grave offence; one of the high grade of felonies, triable exclusively in the oyer and terminer, and which at one time was punished with death. The defendant committed a rude and improper act, one that might fairly have subjected him to a prosecution for assault and battery; hut the case lacks every element of a felonious intent. Speaking for myself, I would not, as a trial judge,’sustain a conviction of robbery upon such flimsy evidence as was developed in this case; and I cannot hut think that, had the jury been adequately instructed upon the law, they would have reached a different conclusion.

The judgment is reversed, and a veuire facias de novo awarded.