*1 Leroy GRAVES Delano Virginia. COMMONWEALTH 0089-94-1. Record No. Virginia, Appeals
Court Norfolk. 17, 1995. Oct. Coleman, J., and filed opinion. dissented *2 Robinson, Fox, Robinson, (Hall, AtLee and M. Jr. Willard Norfolk, P.C., brief), for appellant. on (James Jr., Attorney General Beasley, B. Assistant Robert General, brief), for III, appellee. on Gilmore, Attorney S. BRAY, COLEMAN, JJ. WILLIS Present: WILLIS, Judge. of grand from his
On conviction appeal *3 trial court erred contends the Leroy Delano Graves person, larceny from to original robbery charge grand the reducing trial judgment of the and reverse the agree the We person. court. 25,1992, House Diner robbing Open the
On while August News, twenty dollar bill out of the Graves snatched a Newport Jr., McMurran, a He was customer. Epes hand of Richard specified: The indictment robbing with McMurran. charged 1992, of City in the August, 25th of day On or about the feloniously News, DELANO LEROY GRAVES Newport McMurran, Jr., of United States Epes did rob Richard currency. evidence, the trial of conclusion the Commonwealth’s
At the robbery. The court held as to court struck the evidence included is lesser offense the larceny from grand go case to the permitted of charge within a The person. from the charge grand on a forward sufficiency of the is the appeal within this issue embraced from the grand larceny a conviction support indictment to insufficient, re- we we find the indictment Because person. the conviction. verse crime, a common “the
Robbery, law is defined as steal, taking, with to property intent of anoth personal er, from will, by his or his his presence, against Commonwealth, violence or intimidation.” Mason v. 200 Va. 253, (1958) 254, 105 149, (citations omitted). While includes, element, the definition of as an the theft include, elements, it property, does not as either the value the property taken that the be taken property from person of the victim. crime, a common is
Larceny, law the taking personal value, another, goods of some belonging intrinsic assent, without deprive and with the intent the owner permanently. thereof Jones v. 3 Va.App. (1986). Simple 417-18 petit larceny punishable § Larceny as a misdemeanor. Code 18.2-96. committed from of money thing of another or other of a punishable value of five dollars or more is as 18.2—95(i). § from felony. Code elements of include grand larceny the value the property stolen and theft from the of the victim.
The indictment did not charge theft, person. it no alleged allegation While contained allegation the value of stolen no that the property person. Thus, was taken McMurran’s face, indictment, on its failed to accusation of specify person. although The Commonwealth contends that the indict *4 ment did not set specifically charge, grand forth that a the lesser offense within an included accusa and, thus, tion of robbery specification robbery the of in the indictment sufficiently set forth of grand accusation from the person.
A “composed lesser included offense must be of entirely greater elements that are also elements the of offense.” “charged The lesser offense is therefore always by implica- “greater “necessarily tion” as a the part offense” proven the of the proof greater offense.” The elements ciimes, nature,” are determina- of the their “fundamental or the tive, of a case specific “the facts particular given of a indictment.” language Commonwealth, 286, 290, 411 S.E.2d Crump v. (citations omitted). (1991) ar Commonwealth in the indictment robbery set forth charge that the gues all the theft and of of the attendant included an accusation theft. in that actually involved and circumstances elements 757, 240 Va. find in Jones v. guidance We 249, 58 denied, (1978), 99 S.Ct. cert. 439 U.S. S.E.2d 658 L.Ed.2d 238. money motel clerk night robbed a
The accused Jones walked about car. He then courtesy to a keys and thé courtesy car. stole the parking the motel lot and yards across robbery of charging He convicted under indictments was Claiming courtesy of the car. night grand larceny clerk and Jones jeopardy, be free from double right violation of his clerk night of the on appeal contended this Rejecting courtesy of the car. included conviction, Supreme Court argument affirming said: upon claim is based constitutional
[The defendant’s] that, is a lesser-includ- grand larceny argument generically, that, of the believe purposes offense of We ed clauses, larceny is jeopardy double expressly is the theft robbery only when offense charged in the indictment. within another unless is not lesser-included
One offense different- in the other. Said all of its are included elements if it another is not lesser-included within ly, one offense not. an element the other does contains a neces- said to constitute a lesser offense can be Before offense, legal ingredients all the sary greater part included offense must be delicti the lesser corpus offense; so, if an element greater the elements offense corpus delicti of the lesser establish the necessary *5 is irrelevant to the proof offense, of the greater the lesser cannot be held to be a necessarily included offense.
Definitionally, theft is an component essential of and charged as such in every robbery indictment. Mani- festly, a robbery indictment includes all elements of whatev- er larceny offense charges, whether petit, and the larceny is, offense charged therefore, lesser-included in robbery. Here, grand larceny of the car was not charged in the robbery indictment. Since one the essential elements of that larceny car, offense was the value of the and that element was not an essential robbery, element of we hold that the crime of larceny of which defendant was convicted was not the crime of robbery of which he was convicted. 759-60, (citations omitted).
Id. at
In
Garland v.
(1994),
S.E.2d 628
we considered the scope of the “from the
person” element of grand larceny from the
In
person.
Gar
land, the victim was standing
open
at the
drawer of a cash
register which she was operating. The accused reached “to
within inches” of the victim and
money
snatched
from the cash
drawer.
Virginia
Because no
decision
specifically
had
defined
scope
element,
person”
“from the
we discussed
holdings from several other states to create a context in which
to determine the definition to
applied
be
in Virginia. Distin
guishing the “from the person”
requirement from the
presence”
requirement
id. at
robbery,
Thus, we hold that
the person embraces not
only theft of property
victim,
contact
physical
with the
possession
in the victim’s
*6
of
that is
but also theft
and control.
custody
his immediate
and within
the
thus
710,
perimeter
Plainly,
at
Because in indict the the accusation simple larceny, bare Therefore, simple petit larceny. sufficiently charged ment proceedings, trial court for further remand this case to the we if be so advised. the Commonwealth and remanded.
Reversed
COLEMAN, Judge, dissenting. larceny from the majority holds that 18.2—95(i) not a lesser-included offense § is under Code and, holding that there- I with robbery. respectfully disagree fore, I dissent. not decided previously this issue has been
Although larceny from dictum that we have intimated obiter Virginia, Broody In robbery. the is a lesser-included offense 468, 281, 291, 429 474 S.E.2d v. 16 said, (1993), hold that the court did panel “[w]e of this Court refusing give appellant’s commit reversible error embodying instruction robbery instruction proposed (em Id. person.” larceny lesser-included from offense Commonwealth, 18 v. Va. added); Saunders phasis see also (1994) 526, a trial 827, (upholding 825, 447 528 App. that noting conviction court’s to “the lesser charge had reduced a the trial court Furthermore, person”). from the offense of included that jurisdictions have held other holdings I find the robbery. offense of White, See, e.g., v. State jurisdictions persuasive. to be
those (1988); 506, 813, Henry, v. 816-17 State 369 S.E.2d 322 N.C. 168 168, 775, (1982);
57 N.C.App. Commonwealth 776 Ahart, v. 37 565, 127, (1994); Mass.App.Ct. 641 N.E.2d 131 Jones, Commonwealth v. 83, 840, 362 Mass. 283 N.E.2d 843-44 State, Moorman v. (1972); 473, (Tenn.Cr.App. 577 S.W.2d 475 State, 1978); Johnson v. (Tenn.1975); 558, 531 S.W.2d 558-59 State v. Knaff, 204 Neb. 712, 115, (1979); 285 117 N.W.2d Harrison, State v. 680, 149 373 A.2d N.J.Super. McDonald, People (App.Div.1977); Mich.App. (1982). N.W.2d
The majority bases its holding upon
ground
requires
proof
two elements
which are
and distinct
separate
from the elements of
First, grand larceny
person requires proof
that the
*7
more,
18.2-95(i),
§
value of the item stolen was
or
Code
$5
Second,
required
prove robbery.
which is not
to
the majority
larceny
person”
holds that
“from the
is an
different
element
from
robbery,
majority
the element of
his
presence.”
Commonwealth,
Jones
v.
primarily upon
relies
Va.
(1978),
Id. S.E.2d at 660. the considerations determining involved in whether offenses are the same “as lesser included an indictment” for double charged quite are different from those involved jeopardy purposes determining whether the elements of offenses are the same of a lesser-included offense. purposes convicting accused To is a lesser- determine whether law, we must Virginia included offense under whether, former definitionally, consider all the elements opinion, In my are included within the elements the crime of all of the elements that constitute definition the elemental are included within crime, defined is is a common-law robbery. Robbery, which steal, personal to with intent “taking, as will, by his presence, against or in another, from his Commonwealth, 209 Va. v. intimidation.” violence or Johnson (1968). Larceny, also 570, 572-73 291, 293, 163 S.E.2d wrongful “as ‘the defined Virginia, crime in common-law value, intrinsic goods of some taking of personal fraudulent assent, with the inten- another, without his belonging ” Bryant permanently/ thereof owner deprive tion (1994). 179, 183, 248 Va. *8 larceny from 18.2-96(1), codify which §§ Code 18.2-95® offense, provide but define the separately do person, shall be or more person from the larceny that only $5 larceny person from the larceny and that grand as punishable Thus, petit larceny. we as punishable be of less than shall $5 larceny person: from the define law to the common look steal- by privately is either person from the “Larciny [sic] assault, usually called which by and violent ing; open or law, person from the larceny ... At common robbery.” lacks person from the larceny in that robbery differs Larceny in — put fear that the victim be requirement law in the common middle ground forms a from the associated commonly most stealing “private” between 170 commonly force and violence larceny, taking by
with and the robbery. with associated 706, 710, 446 S.E.2d v.
Garland Buckom, (1994) 328 N.C. (quoting State omitted)). (1991) (citation 362, 364-65 S.E.2d is not out that one offense “pointed The Court has Supreme are unless all its elements lesser-included within another Commonwealth, 221 Va. Martin v. included the other.” (1981). Furthermore, “theft 720, 723, 780-81 charged as robbery, larceny] component is an essential [or indictment, indictment robbery and a every robbery such offense is includes, therefore, larceny of whatever all elements Jones, Id.; also 218 Va. petit.” or see charged, grand whether 759-60, robbery that “a indict- (stating at 660 at larceny offense all of whatever ment includes elements charges”). catego- be larceny person may from the
Similarly, because
like
punishment,
petit
purposes
rized as either
or
from the
taking
personal
it involves the
robbery,
be-
only
of another. The
difference
or
possession
presence
robbery
is that
larceny
tween
or
accomplished
a taking accompanied
must
involve
force, violence,
According-
or intimidation.
the use of
through
punishable
whether the offense be
from the
ly, larceny
18.2—95(i)
§
or
petit
under Code
as
18.2-96(1),
of rob-
§
includes all of the elements
under Code
that the
majority incorrectly
In
holds
bery.
my opinion,
element
that excludes
distinguishing
of theft
is a
amount
a
offense of
from the
as
grand larceny
holding
its
that
majority
further bases
offense of
is not a lesser-included
a
person requires
the conclusion
upon
whereas
actual physical possession,
from the victim’s
taking
“from his
his
a
either
robbery requires
taking
Therefore,
robbery,
sufficient to
taking
prove
presence.”
actual
possession
from the victim’s
may
which
be
*9
“from
taking
than a
a
element
presence,” involves
different
larceny
person.
from the
the
a
person” required
prove
the
Thus,
larceny
person
the
from
majority,
according
rob-
every
not
because
a lesser-included offense
not
“in his
does
bery,
from
may
taking
presence,”
which
be
person.”
“from the
necessarily
taking
include
Willis,
majori-
Garland, however,
for the
Judge
speaking
In
only
not
ty,
person
“that
from the
embraces
stated
victim,
the
but
from
contact with
property
physical
theft of
and
possession
in
also
that is
the victim’s
property
theft
Va.App.
at
custody and control.”
within his immediate
added).
710,
panel,
The Garland
(emphasis
[a]t if it “in the only presence” another even was stolen____ ‘from the “Property time it is stolen at the was ... if person’ protection was under the to him.... As said although actually ‘attached’ in his presence, in the 1600’s: ‘for that which is taken Coke ” is in law from his person.’ taken omitted). (citation Id. at 630 at “from as view, person” holds that my In Garland person’s includes from the element of custody. or or control presence immediate possession be or Similarly, requirement or construc- from the victim’s actual presence” includes possession person’s tive which is from the possession, Commonwealth, 19 custody. control and Beard immediate (1994). no 359, 362, I perceive person” “from the as construed the element difference and “from the Garland Moreover, this as an in his element presence,” development the common-law is consistent with approach *10 both of which person, the law of Larceny from in Virginia. I have now been codified believe offense of for that lesser developed provide was immedi- from a person’s both of which theft robbery, prohibit but the peace, resulting and the breach presence ate elemental only including an act of violence. lesser taking difference, robbery involves my opinion, is that violence, force, Accordingly, or intimidation. accomplished whether it be I believe I and would robbery, offense of is a lesser-included petit, conviction. affirm the appellant’s Jeffrey Torrance JOHNSON Virginia. COMMONWEALTH 2220-93-2. Record No. Virginia, Appeals Court Richmond. Oct. 1995. J., opinion. Benton, dissenting filed