Lead Opinion
— Aрpellants were charged in the district court of Bannock county with having robbed one Lee Lewis of $45, and оn the trial the jury found them guilty as charged. The judgment of the court fixed the punishment of appellants at not less thаn five years in the state penitentiary, from which an appeal was taken.
The information in this case wаs signed by “H. O. Mc-Dougall, Acting Prosecuting Attorney, Bannock County, Idaho,” and the first assignment of error attacks the informаtion and all proceedings under it as void because the record fails to disclose the appоintment of H. O. Mc-Dougall as special prosecutor, or any reason for such appointment. No objection to the information was made in the court below on this ground, and while the record should have shown thе appointment of a special prosecuting attorney, and the reason therefor, in the absence of such showing it will be presumed that one or more of the statutory reasons therefor existed, and thаt the appointment was properly made by the trial court. (State n. Yturaspe,
The next assignment of error is based upon the following instruction to the jury:
“You are instructed, gentlemen of thе jury, that if a person losing at cards voluntarily delivers the money lost to the winner’s actual possession, the winnеr owns the money, so that the forcible taking of it from his possession may constitute robbery.”
"We think this instruction constitutеs ground for reversing the judgment. After the jury had retired they returned into court and requested the court to inform them as tо the ownership of the money alleged to have been taken in the robbery. This, of course, the court сould not do, but in the course of the interview between the court and the jury the court called attention of the jury to this instruction, together with the instruction defining robbery. Considering this request of the jury for information, it seems improbablе that without this instruction the jury would have found the defendants guilty of the crime of robbery.
While it is held by some courts that money won in an ordinary bet and voluntarily paid over becomes the property of the winner (Blain v. State, 34 Tex. Cr. 448,
It has been held that if two persons play and bet at cards and the loser wrongfully, fraudulently and by force and violence compels the winner to surrender to the loser the money won, this is not robbery. (Gant v. State,
There is evidence tending to show that appellants, if they committеd the acts charged, forced the delivery of the $45 by Lewis to Price under the belief that the money so takеn belonged to Floyd Price. If it were taken under such circumstances, under the bona fide belief that it was his and that he was еntitled to its possession, Floyd Price at least would not be guilty of robbery, although he would be guilty of a criminal offense. (State v. Brill,
Dissenting Opinion
Dissenting. — I concur in that portion of the majority opinion relating tо the signing of the information by the acting prosecuting attorney, but I am out of accord with that part of the оpinion relating to the instruction under consideration and also the question of the sufficiency of the evidеnce. I think the giving of the instruction complained of did not constitute reversible error. While there is a confliсt of authority as to the correctness of the rule stated in the instruction, I think the sound view to be that a forciblе retaking of money lost in a gambling game, in accordance with the rules thereof, where there has beеn a voluntary payment by the loser to the
“If the pаrty losing at cards voluntarily delivers the money lost to the winner’s actual possession, the winner owns the money, sо that the forcible taking of it from his possession may constitute robbery.”
To the same effect see: Carroll v. State, 42 Tex. Cr. 30,
“In such ease, in a civil suit, the law would leave the parties in statu quo, and certainly in a criminal сharge it would not recognize a retaking of the property, which involved all the elements of a prеmeditated robbery.”
I have examined the evidence and find a sharp conflict but sufficient competеnt evidence to support the verdict and judgment. Where there is substantial conflict in the evidence but sufficiеnt competent evidence to sustain the verdict, it will not be disturbed. (State v. Silva,
In my opinion the judgment of the lower court should be affirmed.