91 Ala. 34 | Ala. | 1890
The indictment in this case is substantially in the form prescribed by the Code for the offense of robbery, and is sufficient.—Code, p. 276, Form 76; Chappel v. State, 52 Ala. 359.
The evidence on the trial was without conflict, to the effect that the possession of the property, the subject-matter of the alleged robbery, was obtained from the prosecutor by artifice, and without violence, or putting in fear; and that after the possession had been thus peaceably obtained, it was retained, and the property carried away, by putting the prosecutor in such fear as prevented any effort on his part to regain it. The bill of exceptions sets forth that the prosecutor and his brother, aged respectively fifteen and thirteen years, the former having a gun, met three men, including the' defendant, in a road or street in the suburbs of Birmingham. “Two of the men passed on, while the defendant stopped, and engaged in conversation with Robert Yarborough [the prosecutor], in regard to purchasing the gun that said Robert Yarborough had in his hand. Said Yarborough voluntarily handed the gun to the defendant for examination, in obedience to the request of the defendant to be allowed to examine it; and the said defendant conversed with said Robert Yarborough about five minutes in regard to the gun, inquiring how the said gun was operated, and whether it was loaded. Being informed that the gun was loaded, the defendant then stepped back about ten steps, and said to Y arborough, ‘Run, or I will shoot you,’ pointing the gun at him.” Yarborough did not run, but was frightened, and backed off some distance; and the defendant then ran away with the gun. The jury found the defendant guilty of robbery, and he was adjudged and sentenced accordingly. The rulings of the court on charges requested for the defendant were to the effect, that these facts constituted robbery; and whether they did or not, is the main inquiry arising on this appeal.
The authorities are well nigh uniform to the position, that the violence, or putting in fear, which is an essential element of the crime of robbery, must precede, or be concomitant with the act, by which the offender acquires the possession of the property. The offense is against both the person, and against property. In so far as it is against the person, it consists in personal violence, or personal intimidation. In so far as it is against property, it consists of manucaption animo furandi. If there be violence, or putting in fear, however aggravated, without a taking and asportation of property, there may be
The adjudged cases fully support these texts. In an early case, the facts were, that the prisoner desired the prosecutor to open a gate for him, and, while he was so doing, the prisoner took his purse. The prosecutor, seeing it in the prisoner’s hand, demanded it, when the prisoner answered : “ Yillian, if thou speakest of thy purse, I will pluck thy house over thine ears, and drive thee out of the country, as I did John Somers,” and then went away with the purse ; and because he did not take it with violence, or put the prosecutor in fear, it was ruled to be larceny, and no robbery, for the words of menace were used after the taking of the purse.-Rex v. Harman, 1 Hale’s
“ Robbery,” says the Supreme Court of Arkansas, “ is defined to be a felonious taking of money or goods from the person of another, or in his presence, against his will, by violence, or putting him in fear. And this violence must precede or accompany the stealing.”—Clary et al. v. State, 33 Ark. 561. And the same doctrine is held substantially in the following cases: People v. McGinty, 24 Hun, 62; State v. Jenkins, Mo. 372; State v. Deal, 64 N. C. 270; State v. John, 69 Amer. Dec. 777; State v. McCune, 70 Amer. Dec. 176, notes 178.
We have discussed this point more at large than we should otherwise have done, because we are constrained, in following the very numerous authorities that have been cited, there being none outside of this State to the contrary, it is believed, supporting, as they clearly do, the sound doctrine in this connection, to overrule a case decided by this court in 1875, in which it was held that one having the actual possession of the property of another, might yet be guilty of robbery in respect to it, by using violence on the person of the owner, not to take possession, but to make off with the property. The case referred to is that of James v. State, 53 Ala. 380. The facts were, that the defendant and one Hardy were travelling together on foot, and Hardy handed certain articles contained in a bag to defendant, to be carried for him. Th'ey proceeded some distance in this way, when the defendant took a step
Some of the rulings of the trial court, doubtless based on and induced by James' Case, supra, are erroneous under the view we have taken; and the judgment below will therefore be reversed, and the cause remanded.
Reversed and remanded.