Opinion
No. 38586.
January 12, 1953.
1. Criminal procedure — instructions.
When the court had granted to the defendant an instruction which embodied the principle for which he contends, he may not complain that the State's instruction, correct in form on the issue presented, did not contain also the principle for which the defendant contended.
2. Robbery — sentence with statutory limits — discretion of trial court.
The term of a sentence, when within statutory limitations, is in the discretion of the trial court, and a sentence of seven years in the penitentiary for robbery is within the statute and is therefore not excessive. Sec. 2362, Code 1942.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Scott County; W.E. McINTYRE, SR., Judge.
Howard B. McCrory, Jr., for appellant.
By the weight of authority it is not robbery for one who has lost money in gambling to compel by force or threats the return of the money lost. In view of statutes and rules of law which give to the loser the right to recover his losses, the retaking thereof by force is deemed to be without felonious intent. 35 A.L.R. 1462; Grant v. State, 115 Ga. 205, 41 S.E. 698; Thompson v. Commonwealth, 13 Ky. L. Rep. 916, 18 S.W. 1022; Sikes v. Commonwealth, 17 Ky. L. Rep. 1353, 34 S.W. 902; People v. Hughes, 11 Utah 100, 39 P. 492.
Thus in Thompson v. Commonwealth, 18 S.W. 1022, supra, wherein it appeared that the loser in a gambling game compelled the winner, at the point of a pistol, to surrender his winnings, the court said: "Under our statute the title to the money won by Barnes did not pass to him or from the appellant, nor did the right to its possession pass to Barnes as against the appellant. It is a uniform rule that a person is not guilty of stealing that that belongs to him and to which he has a right. Robbery is larceny accompanied by violence, and putting the person from whom the property is taken in fear. Here the fact that the appellant was entitled to the money, and Barnes' possession of it was not rightful, as against the appellant, stripped the appellant's act of feloniously taking the property of another with the fraudulent intention of permanently depriving the owner of it."
The above decision was followed in Sikes v. Commonwealth, 34 S.W. 902, supra, wherein it was held further that it need not appear that the money taken was the identical money lost.
A similar Mississippi case, Buchanan v. State, 5 So. 617, holds that larceny does not exist where it otherwise would where the taking of personal property is done with the belief that the property taken was so done under the claim of right and title in the taker.
Even assuming that the defendant was properly charged with the crime of felonious robbery, Sec. 2365, Code 1942, the evidence in the case plainly shows that at least part of and possibly all of the money taken by appellant had been won from him in the dice game. He took the money under a claim of title, though by force. So far as the facts surrounding the game of dice is concerned there does not appear to have been any violence or "putting in fear" on the part of appellant until after the dice game had continued without controversy for approximately four hours and only then after the appellant complained that the dice had been changed. Appellant contends that this claim of title under which he acted puts him beyond the severe punishment of seven years in the penitentiary that was here imposed. Geo. H. Ethridge, Assistant Attorney General, for appellee.
Cited and discussed the following:
Thomas v. State, 165 Miss. 897, 148 So. 225; Turner v. State, 177 Miss. 272, 171 So. 21; 31 A.L.R. 1074; 13 A.L.R. 153.
Appellant was convicted of the crime of robbery under Section 2362 and sentenced to a term of seven years in the State penitentiary. He and several other Negroes were engaged in gambling with dice and appellant lost most, if not all, of his money. He then pulled a pistol and, according to the testimony for the State, verified by four of the participants in the game, he took practically all the money they had, including not only that which they had won from him, but also money which they had when the game started. His defense was that he took only the money which they had won from him and he argues on this appeal that it is not robbery for one who has lost money in gambling to compel by force or threats the return of the money which he has lost.
Turner v. State, 177 Miss. 272, 171 So. 21, is almost on all-fours with this case. We there said: "Appellant further says that the peremptory instruction should have been granted, because the evidence does not show an intent to steal. He alleges that the proof is undisputed that he took only his own money which he had lost in an unlawful game of chance. Evidence for the State showed that appellant not only took the money which had been won in the game, but took the witnesses' original money which they had before they went into the game, especially the two one-dollar bills from Brasfield. This, at best, created a conflict on the question as to whether he took his own property, or that of the State witnesses, as well, as testified to by them . . . Appellant's contention is that the money he lost in the game, even though taken by force, was taken without an intent to steal, for one cannot steal his own property. The evidence for the State is against this proposition, and we are not called upon to decide whether or not, in a game of chance, an alleged robber, taking only money he had lost in such unlawful game, would be guilty of robbery."
The State requested and was granted only one instruction. It is in legal form on the issue presented and no complaint is made against it, but appellant contends that the trial court erred in not giving additional instructions to the jury so as to embody the principle that he is not guilty of robbery if he took only the money which he had lost. There are two answers to this contention. One is that in this State a trial court has no authority to instruct a jury sua sponte. Williams v. State, 32 Miss. 389, 1 Mor. St. Cas. 933, 66 Am. Dec. 615; Archer v. Sinclair, 49 Miss. 343; Watkins v. State, 60 Miss. 323; Bacon v. Bacon, 76 Miss. 458, 24 So. 968; Gulf Ship Island Railroad Co. v. Simmons, 153 Miss. 327, 121 So. 144; Masonite Corporation v. Lochridge, 163 Miss. 364, 140 So. 223; J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779. (Hn 1) The other answer is that appellant obtained an instruction embodying the very principle for which he contends; as to its propriety we specifically withhold approval and express no opinion.
Appellant contends, finally, that the sentence imposed upon him is excessive. (Hn 2) We find no merit in this point. The term of a sentence, if within the limits authorized by statute, is in the discretion of the trial court. Harris v. State, 142 Miss. 342, 107 So. 372.
Affirmed.
McGehee, C.J., and Holmes, Arrington and Ethridge, JJ., concur.