Opinion
09-25-1941
STATE v. CAMPBELL et al.
Clair John Killoran, Deputy Atty. Gen., for the State. H. Albert Young, of Wilmington, for defendants.
Marine Thomas Campbell and Walter Kopanski were indicted for robbery. On motion for directed verdict.
Motion denied.
SPEAKMAN, Justice, sitting.
Clair John Killoran, Deputy Atty. Gen., for the State.
H. Albert Young, of Wilmington, for defendants.
Court of General Sessions for New Castle County. Indictment for robbery, No. 9, September Term, 1941.
The indictment was returned under the provisions of 5176 of the Revised Code of 1935 which in part is as follows:
"If any person shall feloniously take from the person of another, by violence, or by putting in fear, any money or other property or thing, which may be the subject of larceny, he shall be guilty of robbery and felony * * *."
It charged that the defendants on August 21, 1941, in Wilmington Hundred "in and upon one John Connelly * * * feloniously did make an assault, and him, the said John Connelly in bodily fear * * * then and there feloniously did put, and (certain personal property therein described) of the * * *, goods and chattels of the said John Connelly from the person and against the will of the said John Connelly * * * then and there feloniously and violently did seize, take and carry away * * *"
The State introduced evidence to show that on the evening of August 21, 1941, the prosecuting witness was alone in his apartment. That by threats made by the defendants to do bodily harm to him by the use of a revolver in the possession of one of the defendants, they gained admission into the apartment. Subsequently one of the defendants gagged and bound the hands and feet of the prosecuting witness. He was then fastened in the bathroom of the apartment, by one or both of the defendants, an electric ironing cord being used for that purpose, one end of which was tied to the bathroom door knob and the other to a water faucet in the kitchen. The defendants then proceeded to ransack the bedroom of the apartment, and left taking with them personal property, consisting principally of wearing apparel, belonging to the prosecuting witness.
At the conclusion of the testimony the defendants moved that the jury be given binding instructions to return a verdict of not guilty, for the reason:
"That in this State the offense of robbery is defined by law, that one of the essential ingredients of the offense is the taking of money or personal property from the person of another, by violence, or putting in fear, and that the State has failed to show that the defendants or either of them so took any money or personal property from the person of the prosecuting witness."
The defendants contend that the language of our statute must be strictly construed, and to warrant a conviction it was incumbent upon the State to prove a taking from the physical possession of the prosecuting witness, and this the State has failed to do.
It is of course true that a penal statute which creates a new offense or contains language of a doubtful meaning requires strict construction.
Robbery at common law has been defined as "the felonious and forcible taking from the person of another of goods or money of any value, by violence or putting him in fear." 4 Black.Com. 241.
In substance this is the language of our statute.
Here the sole question involves the meaning of the words "from the person of another." The defendants concede that at common law these words mean "from the person of another or in his presence." The words in question undoubtedly came to us from the common law, and in arriving at their meaning we should follow the familiar rule of construction that when a statute uses words which have a definite and well known meaning at common law it will be presumed that the terms are used in the sense in which they were understood at common law, unless it appears that it was not so intended.
In re Beyea's Estate, Del.Orph., 15 A.2d 177, citing 25 R.C.L. 994.
This rule was followed by this Court in State v. Lapista and Fucello, 7 Boyce 260, 30 Del. 260, 105 A. 676, 677, in which the defendant was charged with highway robbery. There the Court in its charge to the jury said:
"It is incumbent upon the state to satisfy you beyond a reasonable doubt that there was such a taking [as to constitute larceny] by the accused from the person of the prosecuting witness, or in his presence."
But it is insisted that the State has failed to prove either a taking from the person of the prosecuting witness or in his presence. It is argued that the only evidence of a takingis of a taking from the bedroom of the apartment at a time when the prosecuting witness was confined in the bathroom behind a closed door.
Many Courts have construed the meaning of the words "in the presence of" in statutes similar to ours.
In Commonwealth v. Homer, 235 Mass. 526, 127 N.E. 517, 520, the Court said:
"A thing is in the presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it," and in State v. Deso, 110 Vt. 1, 1 A.2d 710, 712, this language was approved and followed.
The cases of State v. Calhoun, 72 Iowa 432, 34 N.W. 194, 2 Am.St.Rep. 252; Hill v. State, 42 Neb. 503, 60 N.W. 916; State v. Williams, Mo.Sup., 183 S.W. 308, and People v. Cabassa, 249 Mich. 543, 229 N. W. 442, are in many respects like the case at Bar, and in each of them the Court took a view similar to that of the Massachusetts Court in Commonwealth v. Homer, supra. In the Iowa case the Court said in referring to the property taken [72 Iowa 432, 34 N.W. 196, 2 Am.St.Rep. 252]:
"If it be away from the owner, yet under his control, in another room of the house, as in this case, it is nevertheless in his personal possession; and, if he is deprived thereof, it may well be said it is taken from his person."
It is my opinion that under our statute, the evidence introduced by the State is sufficient, if true, to warrant the jury in finding that the personal property in question was taken from the person of the prosecuting witness.
The motion for a directed verdict is denied.