125 Ky. 268 | Ky. Ct. App. | 1907
Opinion op the Court by
Affirming.
The appellants were indicted, tried, and convicted of the crime of robbery; each receiving a sentence of five years in the penitentiary. Appellants’ counsel contends that the testimony did not show that the appellants had committed the crime of robbery, and that the court should have given a peremptory instruction to the jury to find for the appellants.
The testimony of Thomas Warner, the prosecuting witness, was to the effect that he lived in the county of Mason, and went to the town of Maysville, Saturday afternoon, March 10, 1906; that he went to the
The claim of appellants’ counsel is that, conceding the truth of Warner’s statement, the force or violence used in taking the $10 bill from him was not sufficient to constitute the crime of robbery. Authorities on criminal law and the decisions of the courts, while they differ somewhat in their verbiage, in substance define the offense of robbery to be the felonious taking of property from the person of another against his will, by force, violence, or putting the person in fear. As to the extent of the force necessary to be used to constitute the crime, the courts of different states are not in accord, and the appellants’ counsel cites several cases from other states which seem to support his contention; but this court-has determined that the felonious taking of property from a person against his will, by force or violence, however slight, constitutes the offense. In the case of Snyder v. Commonwealth, 55 S. W. 679, 21 Ky. Law Rep. 1538, this court said: “While to pick one’s pocket without the use of some force or violence, or putting in fear, is not robbery, yet if the victim is being pushed or shoved about by the pockpocket or his associate for the purpose of diverting his attention, and the crime is then accomplished, it is robbery, even if the victim is at the time unaware of his loss. 1 Roberson’s Ky. Cr. Law, sec. 290, and cases cited there.” In the case of Jones v. Commonwealth, 112 Ky. 689, 66 S. W. 633, 57 L. R. A. 432, 99 Am. St. Rep. 330, the prosecuting witness, Eckler, testified as follows: “I was holding my poeketbook in my left
Appellants also contend that the proof did not show that the money was taken against his will; that his intention was to surrender it, and he was offering to do so when it was taken. We cannot agree to this. It is true that he was intending to deliver it to Stockton, as a favor to him, in exchange for $10 in silver; but he did not intend to part with it until he received the silver, and had not parted with it when it was snatched from his hand by Tillman.
The instructions given by the court present the law of the case to the jury. At least, they contain no error prejudicial to appellants’ substantial rights. The penalty fixed is complained of as too severe; but it was the province of the jury to fix the penalty, and it is not so severe that we feel authorized to disturb •their action in the matter.
' For these reasons, the judgment of the lower court is affirmed.