Summary
In Thomas v. State, 165 Miss. 897, 148 So. 225 (1933), the facts were as follows: Thomas was indicted for robbing at gun point one Minyard of a cow and yearling.
Summary of this case from Williams v. StateOpinion
No. 30458.
May 8, 1933. Suggestion of Error Overruled May 22, 1933.
1. ROBBERY.
Intent to steal is indispensable element of robbery, but theft may be committed openly, secrecy not being necessary ingredient of crime.
2. ANIMALS.
One killing, on his premises, dog which had been sucking eggs was not guilty of malicious mischief.
3. ROBBERY.
Where complaining witness killed defendant's dog and defendant, by using gun, compelled complaining witness to turn over cattle as damages, defendant was guilty of robbery.
APPEAL from circuit court of Carroll county. HON. JNO. F. ALLEN, J.
J.W. Conger, of Winona, for appellant.
One is not guilty of assault with intent to commit robbery, in using force and threats for the purpose of obtaining money to apply upon a debt which he, in good faith, believed to be due him from the person assaulted.
Barton v. State (Tex.Crim. Rep.), 227 S.W. 317; 13 A.L.R. 147 (note is in 13 A.L.R. 551); 31 A.L.R. 1081; 23 R.C.L. 1150, 1144; 2 Russell Crimes (7 Ed.) 1129; Bishop's New Criminal, sec. 1162.
In robbery, as in theft, it is essential that the taking be animo furandi. Unless the taking be with a felonious intent, it is not robbery.
Glenn v. State, 49 Tex.Crim. Rep., 92 S.W. 806, 13 Anno. Cas. 774; 2 Bishop's Crim. Law, sec. 1158; State v. Holloway, 41 Iowa, 200, 20 Am. Rep. 586; Gables v. State, 68 S.W. 288; Fannin v. State, 51 Tex.Crim. Rep., 10 L.R.A. (N.S.) 744; 123 Am. State Rep. 874, 100 S.W. 916.
This principle has been applied to the forcible retaking of specific personal property.
Smedley, 30 Tex. 215; Barnes, 9 Tex. App. 128[ 9 Tex.Crim. 128]; Wolf, 14 Tex. App. 210[ 14 Tex.Crim. 210]; Higgins, Tex. App., 19 S.W. 503; Glen, 13 Ann. Cas. 774; Boles, 58 Ark. 35, 22 S.W. 887; Wasson, 126 Iowa, 320, 101 N.W. 1125; Brown, 28 Ark. 126; Triplett, 122 Ky. 35, 91 S.W. 281; Dengel, 24 Wn. 49, 63 P. 1104; Vice, 21 Cal. 344; Driscoll, 47 Mich. 413, 11 N.W. 221.
The judicial decisions are practically uniform that the same principle applies to the forcible collection of a debt. In Russell on Crimes, 1129, it is said: "a creditor who assaults his debtor and compels him to pay his debt cannot be convicted of robbery.
13 A.L.R. 147; 13 A.L.R. 151; Crawford v. State (1892), 90 Ga. 701, 35 Am. State Rep. 242, 17 S.E. 628, 9 Am. Crim. Rep. 587; State v. Holloway, 41 Iowa, 200, 20 Am. Rep. 586; State v. Brown, 104 Mo. 365, 16 S.W. 406; State v. Carroll, 160 Mo. 368, 60 S.W. 1087; Barton v. State, 13 A.L.R. 147.
We are dealing here with the good faith demands of a defendant that a tortfeasor — a man who has wronged him — or, one whom he in good faith believed had wronged him — pay to him the damages done, within the technical definition of robbery, where the defendant made no demands whatever for any specific property and did not know whether Minyard had any cattle or not. It is very urgent — important to the defendant — that the bona fides of his conduct as bearing on robbery and felonious intent to take, steal and carry away, be given the utmost consideration in the case.
108 Miss. 7; L.R.A. 1915B 1140, 66 So. 281, Ann. Cas. 1917, 244.
It is violence that makes robbery an offence of greater atrocity that larceny. There can be no robbery without violence and no larceny with it.
One who, under a bona fide belief that property in possession of another belongs to him, takes such property by violence, is not guilty of robbery, there being no felonious intent.
13 A.L.R. 151; Johnson v. State, 218 P. 179.
In the crime of robbery, an intent to steal is essential, so is violence or putting the victim in fear, and the violence or intimidation must precede or be contemporaneous with the taking of the property.
23 R.C.L. 1144, 1149; 3 R.C.L. 1343; 4 R.C.L. 1417; Montsdoca v. State, 93 So. 157, 27 A.L.R. 1291.
A man who takes property claiming for himself or another, commits no larceny.
McDaniel v. State, 8 S. M. 401; Jones v. State, 95 Miss. 121, 48 So. 407.
When property is snatched from a person so as to allow no time for resistance, it is not robbery. When there is neither actual violence or intimidation, the act of picking the pocket is not robbery.
Terry v. Surety Company, 145 So. 111.
It is obvious from a comparison of the terms of the statute and the evidence in this case that the offense of robbery was not made out at all. There was no robbery of his person; there was no taking against his will in his presence by force. He might have stated that he was put in fear but this court has got to be convinced that there was a sufficiency of actual threatening conduct there at the time to put him in fear.
This is a statutory offense and the terms of the statute must be proven and strictly pursued.
Smith v. State, 82 Miss. 793, 35 So. 178.
It is necessary for the state to charge in the indictment and prove an intent on the part of the appellant to steal the personal property taken from the person. The intention on the part of the appellant to commit larceny was an essential part of the crime.
Jones v. State, 120 So. 199; Jones v. State, 48 So. 407, 21 Ann. Cas. 1137; Woods v. State, 6 So. 207; Baygents v. State, 154 Miss. 36, 122 So. 187.
The element of force is not a substitute for the intent to steal.
54 C.J. 1027, also note 7; People v. Sheasbey, 82 Cal. 459, 255 P. 836; State v. Morris, 96 West Virginia, 291, 122 S.E. 914, 917; Analytis v. State, 68 Colo. 74, 188 P. 1113; Butts v. Commonwealth of Virginia, 145 Va. 800, 133 S.E. 764, 768; State v. Culpepper, 293 Mo. 249, 238 S.W. 801.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
In Holland v. State, 8 Ga. App. 202, 68 S.E. 861, the facts of the case bring it practically on all-fours with the case at bar. In that case the prosecuting witness had killed a dog of the accused and the latter demanded certain money in payment thereof and the evidence showed that the money was paid over at the point of a revolver. The appellate court would not disturb the verdict of guilty, stating that it was for the jury to say whether or not the money was taken from the prosecutor by force or intimidation and it was not for the court to say that the evidence was insufficient to authorize the verdict.
To countenance this sort of proceeding would throw us back a couple of thousand years.
The Fannin Case, 135 Am. St. Rep. 487.
The charge against the appellant was supported by the evidence.
Tipton v. State, 212 P. 612, 31 A.L.R. 1074.
In this case appellant was armed with a shot gun and in company with his two sons walked up on this negro, Minyard, told him to throw up his hands, searched him, accused him very vilely of being the party who killed his dog and told him he was going to be paid for the dog, before he left that evening. What could have been more natural than for the negro to interpret these statements, under the circumstances as a threat to kill him.
Argued orally by J.W. Conger, for appellant, and by W.D. Conn, Jr., Assistant Attorney-General, for the state.
Appellant was indicted and convicted in the circuit court of Carroll county of the crime of robbing Lemon Minyard of a cow and yearling, and sentenced to the penitentiary for the term of three years. From that judgment he prosecutes this appeal.
The evidence which was accepted by the jury as true was substantially as follows: appellant is a white man; Lemon Minyard is a negro. Appellant had a dog which was a "suck-egg" dog. For a period of about two months before the alleged robbery, appellant's dog had been going at night upon the premises of Lemon Minyard and sucking his eggs. He had run the dog away from his premises several times. On Saturday night before the alleged robbery, the dog appeared again upon Lemon Minyard's premises near his home. Minyard shot at the dog and killed it. In some manner appellant learned of the killing of his dog, and on the next Monday morning after the killing, armed with a shot gun, he went with his two sons into the field where Minyard was at work. Appellant charged Minyard with killing his dog, which Minyard admitted. Appellant thereupon cocked his gun and threw it upon Minyard and ordered him to throw up his hands, which he did. Appellant's sons then searched him. Appellant demanded that Minyard either pay him twenty dollars or, in lien thereof, turn over to him a cow and a yearling for the loss of his dog. Minyard was unable to pay the twenty dollars, and through fear of either death or great bodily harm at the hands of appellant turned over to him a cow and a yearling which he owned. Appellant and his sons drove the cow and yearling away to appellant's home. Appellant told Minyard before he left that he could redeem the cow and yearling by paying him twenty dollars for the killing of the dog.
Appellant's only assignment of error is that the court erred in overruling his motion to exclude the evidence and direct a verdict of not guilty.
Under the law intent to steal is an indispensable element of robbery, but the theft may be committed openly and publicly as well as clandestinely; secrecy is not a necessary ingredient of the crime. Appellant argues that under the evidence in this case there was an entire absence of any proof of an intent on his part to steal the cow and yearling; that, on the contrary, the evidence demonstrates that in the taking of the cow and yearling he was only collecting an honest debt Minyard was due him for the killing of his dog. There is no decision of our court in point. The authorities elsewhere are divided. Some courts hold that it is not robbery where the defendant by intimidation and fear compels his debtor to pay that which the defendant in good faith believes to be a just and honest debt due him, that in such a case the felonious intent is wanting. 54 C.J. 1028, sec. 52: State v. Hollyway, 41 Iowa, 200, 203, 20 Am. Rep. 586; State v. Culpepper, 293 Mo. 249, 238 S.W. 801; Butts v. Com., 145 Va. 800, 133 S.E. 764. The authorities holding to the contrary are Fannin v. State, 51 Tex. Cr. 41, 100 S.W. 916, 918, 10 L.R.A. (N.S.) 744, 123 Am. St. Rep. 874; Tipton v. State, 23 Okla. Cr. 86, 212 P. 612, 31 A.L.R. 1074.
In the Fannin Case the Texas court, in discussing the question, used this language: "This is more than a simple trespass, and it will be a dangerous doctrine to hold that a man can thus collect his debts. If it was specific property that appellant had a right to, under the circumstances he might use force to get or regain possession of same without being guilty of robbery; and, under the circumstances of this case, where appellant had no right to any specific property, the prosecutor owing him a debt for wages, the amount of which was even controverted, and he simply drew a pistol and made prosecutor pay him what he (appellant) claimed was due, we hold that this was not a good defense, and the court did not err in charging the jury as he did."
It has been held that the rule that the taking under a claimed right is not robbery should not be extended so as to protect one who by force or intimidation collects unliquidated damages. The Supreme Court of Oklahoma in the Tipton case, in discussing this question, used this language, in a prosecution for robbery, "where the taking of the property is for the purpose of forcibly collecting uncertain unliquidated damages as compensation for an alleged felonious assault on the taker's wife, such forcible taking may constitute robbery and does not come within the rule that the forcible taking and retention of the property of another for the purpose of paying or securing the payment of a debt might not be deemed robbery."
We are not called upon to decide in this case whether or not the collection by force or intimidation of a liquidated debt honestly believed to be due constitutes robbery, for a debt of that character is not involved. Here, if appellant had any claim at all against Minyard it was for unliquidated damages for the killing of his dog. Minyard was not guilty of malicious mischief in the killing of the dog. Ainsworth v. State (Miss.), 147 So. 815; Griffy v. State, 118 Miss. 64, 79 So. 3; Stephens v. State, 65 Miss. 329, 3 So. 458. There is serious doubt as to Minyard's civil liability for the killing of the dog. Under such a state of facts, we think the Tipton case applies with special force; the reasoning of that case appeals to us as sound.
Affirmed.