186 Ga. 446 | Ga. | 1938
The first and second questions are answered, in the negative. The offense of robbery as defined by the Code, § 26-2501: “Robbery is the wrongful, fraudulent, and violent taking of money, goods, or chattels from the person of another by force or intimidation, without the consent of the owner, or the sudden snatching, taking, or carrying away any money, goods, ehatj tels, or anything of value from the owner or person in possession or control thereof, without the consent of the owner or person in possession or control thereof.” Although this definition does not expressly use the language that the taking must be with intent tcf steal, it does say that robbery is the “fraudulent and violent taking of money, goods, or chattels from the person of another by force or intimidation, without the consent of the owner.” The use of the word fraudulent in the statute implies an intent to steal: Rutherford v. State, 183 Ga. 301 (188 S. E. 442). An intent to steal is a substantive element of robbery. There can be no robbery without an intent to steal. Sledge v. State, 99 Ga. 684 (26 S. E. 756); Blackshear v. State, 20 Ga. App. 87 (92 S. E. 547).' The words “with intent to steal,” as used in the statute, mean wrongfully and without the consent of the owner to appropriate the property taken to the taker’s own use. Holland v. State, 8 Ga. App. 202 (supra). If the animus furandi is lacking in the taking, there can be no robbery. So our courts have held the taking of property under a fair claim of right of title or possession does not constitute robbery. In Long. v. State, 12 Ga. 293, 320, this court said: “It is true, too> that if a party, bona fide believing that property in the personal possession of another belongs to him, lake that properly, and none other, away from him, with menaces and violence, it is not robbery, and it will be for the jury to say whether the party acted under such bona fide belief. So, if in this case the defendant bona fide believing that the buggy wheels in the personal possession of Braswell belonged to him, had taken them alone by threats and. violence, he would not have been guilty of robbery. Russell on Grimes, 1 vol. 871, 872; 3 C. and P. 400. He did not take the buggy wheels, but other and far more valuable -property; so that
In order to be a robbery there must be a larceny, an intent to steal. One can not ordinarily be guilty of stealing his own property. The rule has been stated as follows: “If one in good faith takes the property of another, believing it to be legally his own, or that he has a legal right to its possession, he is not guilty of larceny.” 36 C. J. 764, § 105. And, “If one in good faith takes the property of another, believing it to be his own or that he has a right to its possession, though his claim is unfounded, he is not guilty of larceny, because there is no felonious intent to deprive another of his property.” 18 Am. & Eng. Enc. L. (2d ed.) 523. Our courts, in a long line of decisions, have held that the taking of property under a fair claim of right does not constitute larceny. Causey v. State, 79 Ga. 564 (5 S. E. 121, 11 Am. St. R. 447); Lee v. State, 102 Ga. 221 (29 S. E. 264); James v. State, 114 Ga. 96 (39 S. E. 946); Smith v. State, 11 Ga. App. 385 (75 S. E. 447); Musgrove v. State, 5 Ga. App. 467 (63 S. E. 538); Brown v. State, 51 Ga. App. 52 (179 S. E. 594). Other cases might be cited. Some courts have extended the rule that the taking of property under a fair claim of right does not constitute a larceny as applicable to one who takes money or property of another, without his consent, to apply to the payment of a debt. The wiser principle on this point seems to be as stated in 36 C. J. 764, § 106: “The fact that a person is indebted to another does not give the creditor a right to seize the debtor’s property in payment of the debt; and such a seizure, if made with intent to appropriate the property to the taker’s own use, is therefore larceny.” And in 18
The courts of other jurisdictions are out of harmony on the question whether one may justify a violent taking of money or property without the consent of the owner to apply to debt. Some of them, under the rule that it is not robbery to take property under a fair claim of right, have held such rule applicable to one who, though with force or intimidation, takes money or property from the person of another, without the consent of the owner, to apply to a debt; such holding being on the theory that when one takes money to apply to a debt the element of fraud, the intent to steal, in the taking is lacking. In such ruling they overlook the consideration that the true meaning of the statute declaring that “Eobbery is the wrongful, fraudulent, and violent taking of money, goods, or chattels from the person of another by force or intimidation, without the consent of the owner,” is the taking, without authority of law, of such property by force or intimidation from the person of another, without the consent of the owner, with intent to convert same to the use of the taker, and that such taking is fraudulent. This ruling also overlooks the fact that the creditor has no title or right of possession of the money or property of the
However, the Court of Appeals of this State, in Holland v. State, supra, has already decided the question. That decision is not binding authority on this court, but it is strongly persuasive. In affirming the judgment the Court of Appeals approved a charge of the court to the jury, that if the defendant by intimidation forced the prosecutor to pay him for the killing of his dog, such would be robbery. The facts of the case were: White killed a dog belonging to Holland, who by intimidation compelled White to pay him ten dollars for the dog. On the trial under indictment for robbery growing out of so taking the money, counsel for Holland requested the court to charge the jury, “that, to constitute robbery, there must have been an intention on the part of the defendant to steak and that if the ten dollars was accepted by the defendant on a bona fide, claim of right, in payment of a debt which he claimed the prosecutor owed him, he would not be guilty.” The judge: after giving the charge requested, 'added the following instruction: “I charge you that, provided that you do not find that he (the prosecutor) paid it over by intimidation,” and followed this by saying: “The words ‘with intent to steal’ mean, to wrongfully appropriate to their own use; and if they by intimidation, forced him, or he, from intimidation, paid over the money and they took it, -intending to use it or keep it, then they would be guilty.” The Court of Appeals held that the trial court did not err in these: additional instructions. We approve of this decision. The rule that taking property under a fair claim of right does not constitute| larceny can not properly be so extended as to absolve one who by' force or intimidation takes from the person of another money or: property to which the taker claims no title or right of possession,!
The law is also enacted that the people may dwell together in unity "and peace. Where will it lead to hold that one who claims a debt against another may without his consent take from him his money or property by force or intimidation and not be guilty of robbery ? Then the creditor may enter the home of the debtor in the darkness of the night after the family has fallen asleep, awake them, and in their frightened presence order the head of the family at the point of a gun to “stick ’em up,” and under such circumstances take his money, watch, bed, furniture, clothing, or other valuables to satisfy the debt; or the creditor may meet his debtor on the street who may be carrying or be in the possession of money or property of another person, and with force or intimidation take any or all of the money to apply to his debt; or the creditor with a claim for one hundred thousand dollars or other large sum, for damages on account of some act of an employee of the bank, may enter the bank and at the point of a gun compel its cashier to open its vaults and turn over all the funds of its depositors to pay the demand; or one may claim damages for injuries by a railroad or other corporation and to satisfy the same compel with force and intimidation its officers to settle; or the creditor may meet the debtor with his family in his automobile, traveling the highway, and violently force them out of the car, take it to pay his debt, and drive away, leaving them to hitchhike their way the best they . may;- or the wife of a small debtor may under the law have his little property exempted from the payment of the debt, and the creditor be unable to lawfully reach it, and yet the creditor can defeat the law by taking the property with force or intimidation to apply to the debt; — any or all of such or similar acts of violence the creditor may employ to collect his debt or claim, arid then not be guilty of robbery. If such be held to be the law, then the natural and only recourse of the debtor in his home or elspwhere would not be the protection of the law but would be to arm,
Wherefore we hold the violent taking of money or property from the person of another by force or intimidation, without the consent of the owner, for the purpose of converting the same to the use of the taker for the payment of a demand claimed to be due him by
One of the theories of the defendant Crawford was that the deceased was robbing him of his meat, and that the killing was done to prevent the robbery. On this question the court charged the jury: “It would be justifiable homicide to kill another to prevent a robbery being committed upon the person doing the killing, but it must appear that such killing was absolutely necessary to prevent such robbery and was done before such robbery was committed. After the possession of the property has been changed from the owner to the robber’s, the robbery is complete. After the robbery has already been committed it would not be justifiable homicide in order to get back the property.” Also: “Kobbery is the wrongful, fraudulent, and violent taking of the personal goods and chattels from the person of another by force or intimidation, without the consent of the owner. To constitute robbery a necessary element is the intent to steal the property; that is, to take it wrongfully and fraudulently. Another element of robbery is, the taking must be accompanied by force or intimidation, used against the person of the one from whom it is taken and against his consent.” Also: “The mere force of moving the property is not the force contemplated by the law, but it must be force or intimidation directed
The first inquiry contained in the third question of the Court of Appeals, “Can the passage of a rule of practice .by the judges of the superior courts . . be classified as the exercise of a 'judicial power’ under art. 6, sec. 1, par. 1, of the constitution of this State,” is answered in the negative. We construe this question to refer to a rule adopted by the judges of the superior courts in convention, and not to be an inquiry as to the power of the superior courts to make rules of practice for the proper functioning of the superior courts. Since the Court of Appeals requested the instruction, this court, in Jones v. Boykin, 185 Ga. 606 (196 S. E. 900), held that the judges in convention were not authorized as superior courts to make rules or pass orders, but were authorized to act as a convention of judges. Under this decision we hold that the power of the judges of the superior courts to make the rule in convention can not be classified, under the constitution, as the exercise of a judicial power.
Having answered in the negative the first inquiry contained in the third question of the Court of Appeals, we do not consider, under the form of the remaining questions, that the Court of Appeals desires instruction on the second inquiry contained in the third question, or instruction on the fourth question. It appearing from these questions that the Court of Appeals desired further instruction only in event we answered that the passage of the rule of practice by the judges of the superior courts in convention could be classified as the exercise of a judicial power under the constitution, and we having answered this question in the negative, no instruction upon the remaining question is required.
Counsel for the defendant in error contends in his brief that the