Jackson v. State , 69 Ala. 249 ( 1881 )

BRICKELL, C. J.

-The form of indictment for the offense of robbery, prescribed by the Code, following in this respect approved precedents at common law, contains a distinct averment of the value of the goods taken. ’Without such an averment an indictment for the offense would not be sufficient. Tlie precise point of objection to the present indictment is, that it avers a talcing of the valise only, and not a talcing of the valise and clothing; and avers the value of the clothing, omitting to aver that the valise was of any value. The averment is in these words: “ Feloniously took one valise containing ■clothing of the value of twenty dollars.” This we construe as a charge, that the taking was of the valise holding clothing at the time of the taking, and it then holding the clothing, a talcing of the clothing is included; and that the statement of the value is of the collective or aggregate value of the valise and ■clothing, not of the value of the clothing separately. An indictment for the larceny of several articles is sufficient, if the ■aggregate value is averred, though for reasons not of importance in cases of robbery, it is the better practice to allege the value •of each article separately. In this view the indictment is •sufficient, and the demurrer to it was properly overruled.

The confessions of the accused were shown to have been ■made in the absence of all threats or promises — of all inducements to either of them to avow, or disavow complicity in the •offense, and were properly admitted as evidence. The fact that they were made while the accused were in prison to an officer having authority, may in the estimation of the jury have affected their credibility, without affecting their admissibility.

The first and second instructions to the jury, requested by •the appellants, are founded on the same construction of the in•dictment as that on which the demurrer was based, and which we have declined to adopt. They are, however, clearly erroneous as propositions of law. It was not necessary, as these •instructions import, that it should have been proved in every ■event, that the valise had any specific pecuniary value. -If there was evidence showing that it was not worthless — -that it was not wholly unfit for rise, or that the owner kept and preserved it as of value to him, it was the subject of robbery, though the pecuniary value which could be imputed to it was nominal, insignificant, or incapable of estimation. Hence, if t>y putting in fear, or by actual violence to the person, a promissory note is extorted, this is not robbery, for the note is void; it is of no value to the wrong-doer, and of no detriment to him from whom it is forced. But taking by violence from the person of the prosecutor a slip of paper containg a memorandum •of a sum of money, which was due or owing to him from another, is robbery. The paper was not evidence of the debt which could have been used against the debtor, but it was evidence that reminded the prosecutor of the existence and amount •of the debt; and, as was said by the court, his keeping of it showed that he considered it of some value. The evidence in the present case, which these instructions liad a tendency to withdraw from the consideration of the jury, was, that the-valise and clothing were of the collective value of twenty dollars, and further, that the valise was in the actual use of the owner to hold clothing. These certainly were facts tending to-show that it was of value — that it was not worthless.

The third instruction ought not to have been given in view of the evidence. It is the duty of the court to avoid giving of' its own motion any instruction having a tendency to withdraw from the consideration of the jury, or to direct their attention from any evidence of a material fact, or from which they could properly infer the existence of such fact. And it is equally the duty of the court to refuse an instruction requested having-such tendency. If this, instruction had been given, the attention of the jury, to say the least, would have been diverted from the only evidence upon the point on which it makes the-case depend- — the evidence of the witness from whom the" valise was taken, that it was snatched hold of and wrenched from his-hands by force, threats being uttered at the same time. It may be true, that the mere stealthy taking, or the sudden, unexpected snatching of goods from the person of another, will not-constitute this offense. But whenever the taking is resisted, and the resistance is overcome by violence, the offense is committed. — 2 Bish. Or. Law, § 1167. Or if- resistance is prevented by threats of actual violence, creating a reasonable apprehension of it, the offense is complete. — lb. § 1169.

We can find no error in the record of prejudice to the appellants, and the judgment must be affirmed.