Hill v. State , 145 Ala. 58 ( 1906 )

ANDERSON, J.-

Tlie defendant was indicted for robbery, and tlie indictment avers tlie taking of property of Alexander Mots from the “person or possession of Lula .Mots,” and was subject to the demurrer interposed. The statute in this State fixes the punishment of robbery only, and we are remitted io the common law for a definition of the olfense. Pretermitting the grounds of demurrer as to the averment of the ownership in one and the taking from another, the indictment was defective by reason of the alternative averment of the taking from the “person or possession” of Lula Mots. Blackstone defines robbery to be “the felonious and forcible taking from the person of another goods or money to any value by violence or putting him in fear.” And all of the authors, while departing in some respects from the language used by Mr. Blackstone, contain in their definition the same ingredients, and none of which contemplates a taking from a bare possession, but provide that the taking should be from the person.

A man might have the possession of a. thing, yet it might not be upon his person, or under his direct personal control. Mr. Bishop, in his work on Criminal Law (volume 2, §8 1177, 1178), in discussing Avha.t may be deemed the “person,” says: “Since robbery is an offense as well against the person as the property, the taking must be, in the language of the law, from the person. The meaning of this legal phrase is, not that the talcing must necessarily be from the actual contact of the body, but if it is from under the personal protection that will suffice. Within this doctrine, the person may be deemed to protect all things belonging to the individual, within a distance not easily defined over which the influence of the personal presence extends. Tf a.thief, says Lord Hale, come into the presence of A., and, with violence and putting A. in fear, drives away his horse, cattle, or sheep, he commits robbery.’ The better expression is, that a talcing in the presence of an individual (of course, their being put in fear) is to be deemed a, taking from his person.” Our own court, in the case of Thomas v. State, 91 Ala. 34, 9 South. 81 speaking through McClellan, C. J., receded from tlie opinion in the case of James v. State, 53 Ala. 380, saying: “The offense is against the actual possession, in the very nature of things. The person offended against must have either the manucaption of the property, or it must at least be i*n his presence, and under his direct- physical, persona! control.”

¡Since the indictment, in this case is defective, and the ca.se must he reversed, we will not attempt to discuss the other questions involved, as it- is very questionable if tire State, conceding its evidence to be true-, has proved any graver offense than grand larceny.

The judgment of the circuit court is reversed, and the cause remanded. Thu prisoner will remain in custody until discharged by due process of law.

Reversed and remanded.

Weak ley, <\ J., and Tyson and B.impson, JJ., concur.