People v. Sheasbey

— Defendant appeals from a judgment of conviction of robbery and kidnaping. The facts out of which the charge grew are briefly as follows: Defendant sold the complaining witness J. T. Brown two pumps with operating machinery and an electric range, which were delivered and installed upon the ranch and premises of the latter. The sale was made and evidenced by a written lease-contract requiring installment payments to be made by the purchaser. Trouble and disputes arose between the two men in respect of promises alleged to have been made by the defendant as to the character of installation and in respect

It is the contention of the appellant that the evidence is insufficient to constitute the crime of robbery because the defendant did not take the property anima furandi, or with intent to steal, but under claim of right of possession and of ownership. Respondent has not advanced any argument in support of the conviction of robbery, but has submitted this branch of the case upon the opening brief of the appellant. Defendant offered several instructions differently worded, but all generally to the effect of informing the jury that, if it found from the evidence that the defendant took the property openly and avowedly believing in good faith that he had the right of possession, he should not be found guilty of robbery. This was the sole defense of the defend

In Bishop’s New Criminal Law, section 849, the author says: “ . . . One who takes another’s goods to compel him, though in an irregular way, to do what the law requires him to with them — namely, to pay his debt — is on no legal principle a felon, though doubtless he is a trespasser. . . . A trespass is not theft, except when done with felonious intent. And he who carries away a thing openly, and not clandestinely, to enforce a just claim, not for fraud, not to injure the owner, but to compel him to do what the law requires, is not a thief, whatever the extent of the wrong viewed otherwise.”

In the code definition of robbery it is stated: “Bobbery is the felonious taking of personal property ... by means of force or fear.” (Pen. Code, sec. 211.) [1] The “felonious” element is not supplied solely by the use of force or fear. Force and fear are not always unlawful or felonious. [2] The intent to steal or anima furandi is an essential element of larceny. (In re Bayles, 47 Cal. App. 517 [ 190 Pac. 1034 ]; People v. Eastman, 77 Cal. 171 [ 19 Pac. 266 ]; Burke v. Watts, 188 Cal. 118 , 125 [ 204 Pac. 578 ] ; Wharton’s Criminal Law, 8th ed., secs. 848, 853, 884.) Larceny is an essential part of robbery. (People v. Nelson, 56 Cal. 77 ; People v. Jones, 53 Cal. 59 .) [3] It is essential to the crime of robbery that ownership or at least the right of possession of the property taken must be in someone other than the defendant. (People v. Ammerman, 118 Cal. 23 [ 50 Pac. 15 ]; People v. Vice, 21 Cal. 345 ; People v. Hale, 64 Cal. App. 523 , 530 [ 222 Pac. 148 ].)

[4] We conclude that the part of the judgment convicting the defendant of the crime of robbery should be reversed, the defendant having taken the property under claim of right of possession and not with the intention of stealing it.

Appellant assigns as error the court’s ruling sustaining objections to questions asked of the defendant as a witness with regard to his intent. [6] Most of these questions related to the acts constituting the alleged robbery group of facts. As to them the defendant should have been permitted to testify to his intent in doing the acts proved. [7] But so far as these rulings relate to the charge of kidnaping the record shows the court sustained an objection to only the one question: “What was your reason for taking Mr. Brown on the truck with you to Riverdale?” The record of the trial shows the question did not call for the statement of any fact which might have made the taking lawful, such as a warrant, consent, or the like. If any such purpose was in the mind of the defendant’s attorney unobjectionable questions could have brought out such facts, without using such expressions as “why” or “for what reason.” No suggestion of any such facts was or has been made. The question- called for and the record shows that it called for the motive or state of mind of the defendant only.

[8] Where the intent, state of mind, or belief of the defendant is an element of the crime, he is permitted to give his direct testimony on that fact. (16 Cor. Jur. 565; People v. Farrell, 31 Cal. 576 , 582; People v. Mullaley, 16 Cal.

In the Pick case facts offered in evidence by the prosecution were held material to show the intent of the defendant because it was an issue in that ease as to whether the defendant carried away the person under a warrant which he held, or otherwise. The warrant was the defendant’s defense and in rebuttal certain facts were considered to show that the officer was not making an arrest in good faith followed by an escape, but that he used the warrant as a subterfuge. There the defense was a lawful warrant plus intent to execute it in good faith. Here nothing is urged as a defense except state of mind or motive alone.

The part of the judgment convicting defendant of the crime of robbery is reversed and the part convicting him of the crime of kidnaping is affirmed.

Sturtevant, J., and Nourse, J., concurred.