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Lear v. State

Supreme Court of Arizona

December 31, 1931

JOE LEAR, Appellant,
v.
STATE, Respondent

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and cause remanded.

Mr. Austin O'Brien, for Appellant.

Mr. K. Berry Peterson, Attorney General, Mr. J. R. McDougall, Assistant Attorney General, and Mr. Lloyd J. Andrews, County Attorney, for the State.

OPINION

[39 Ariz. 314] ROSS, J.

The appellant was convicted of robbery. He appeals and assigns as error the insufficiency of the evidence to sustain the conviction and the giving of erroneous instructions.

The prosecuting witness, George Gross, testified that around 7 o'clock on the morning of August 12, 1931, he opened the Campbell Quality Shop, located in Buckeye, Maricopa county; that just about that time appellant

Page 427

entered the store and inquired about purchasing some shirts and shoes; that in the meantime he had taken a box of currency and a bag of silver out of the store safe; had placed the currency in the cash register and the bag of silver on the counter; that, while he was in the act of untying or unrolling the bag of silver, and while it was on the counter, appellant grabbed it from his hands and ran out of the back door; that appellant said no word at the time, exhibited no arms, and used no force other than to grab the bag as stated above. Appellant admitted taking the bag of silver and that it contained $33.

It was the contention of appellant at the trial, and is his contention here, that the facts do not show that he committed the crime of robbery. This crime is defined by our statute, section 4602, Revised Code of 1928, as follows:

"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence and against his will, accomplished by means of force or fear. The fear may be either of an unlawful injury to the person or property of the person robbed, or of a relative or member of his family; or of an immediate and unlawful injury to the person or property of any one in the company of the person robbed at the time of the robbery."

The crimes of robbery and larceny are not the same. The former is classified as a crime against [39 Ariz. 315] the person and the latter as a crime against property. In robbery there is, in addition to a felonious taking, a violent invasion of the person. If the person is not made to surrender the possession of the personal property by means of force or fear, the dominant element of robbery is not present. The mere taking of property in possession of another, from his person or immediate presence and against his will, is not robbery. Such taking must be accomplished by force or fear to constitute robbery.

The element of fear is not in the case. Appellant made no threat or demonstration. He simply grabbed the bag of silver from the hands of the prosecuting witness and ran away with it. There was no pulling or scrambling for possession of the bag. Was the force employed by appellant the kind of force necessary to constitute robbery? We think not. As we read the cases and text-writers, "the force used must be either before, or at the time of the taking, and must be of such a nature as to show that it was intended to overpower the party robbed, and prevent his resisting, and not merely to get possession of the property stolen." Rex v. Gnosil, (1824) 1 Car. & P. 304, 171 Eng. Reprint 1206.

It is said in State v. Parsons, 44 Wash. 299, 120 Am. St. Rep. 1003, 12 Ann. Cas. 61, 7 L.R.A. (N.S.) 566, 87 P. 349:

"The courts generally hold that it is not robbery to merely snatch from the hand or person of another, or to surreptitiously take from another's pocket, money of some other thing of value, as such taking lacks the element of force, or putting in fear, one or the other ...


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