Lead Opinion
Appellant-defendant, an indigent, appeals from a judgment entered pursuant to а conviction for robbery. Sentence imposed ■was ten years imprisonment.
The indictment charged that the defendant “ . . . feloniously took $209.23 the property of Wanda Crоsby, from her person, and against her will, by violence to her person, or by putting her in such fear as unwillingly to part with the same. ...”
It appears from the evidence that Wanda Crоsby, an employee of Majik Mart, a
It further appears in the record that the victim testified that during the ordeal, before the robbers left, “. . . it dawned on me to get scared.” On cross еxamination she testified that she wasn’t afraid with Charles Williams holding a gun on her.
Defendant, when thе State rested, moved orally to exclude the State’s testimony on the ground that the State had not made out a prima facie case against the defendant as to the charge contained in the indictment. Appellant’s counsel pointed out thаt the victim testified affirmatively that she was under no fear when she parted with the money; thаt she was not afraid until after the alleged robbery took place. The court denied the motion.
It is our opinion that the denial of the motion was correct and that appellant’s contention of error is without merit.
This Court held in Tarver v. State,
Be that as it may, we do not think that the victim’s assеrtion that she was not afraid eliminated the issue of mandated fear in the statute. Fear was an alternate element of the offense. The jury could have inferred that shе was not afraid pending compliance with the demand to surrender the money, but fear obtained if she did not. Evidently there was existing fear in the mind of the victim because she obеyed the robber’s order and immediately after compliance she fainted. The еvidence of prompt surrender of the money and the fainting belied the victim’s assertiоn of bravery and left the jury to infer that the victim’s claim that she was not afraid was sheer brаggadocio. The existence of fear vel non was an issue for the jury to determine from the evidence.
The evidence was ample to suрport the State’s contention that appellant-defendant was an accomplice in the robbery and a principal under Title 14, § 14, Recompiled Code 1958. We omit further details.
The judgment of the trial court is affirmed.
The foregoing opinion was prepared by the Honorable Bowen W. Simmons, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his оpinion is hereby adopted as that of the Court.
Affirmed.
Concurrence Opinion
(concurring specially):
The common law expression of putting in fear does not rеquire a chilling fright to run through the victim’s veins and thus produce a consciousness of violent duress.
* * * And when it is laid to be done by putting in fear, this does not imply any great degree of terror or affright in the party robbed: it is enough*240 that so much force, or threatening byword or gesture, be used, as might create an apprehension of danger, or induce a man to рart with his property without or against his consent. Thus, if a man be knocked down without previous warning, and stripped of his property while senseless, though strictly he cannot be said tо be put in fear, yet this is undoubtedly a robbery. Or, if a person with a sword drawn begs an alms, and I give it him through mistrust and apprehension of violence, this is a felonious robbery.
—Blackstone, iv Com. 243
I would not make the subjective feeling of the victim a sine qua non of putting in fear.
Notes
. See: Gross v. State, 1975,