Sledge v. State , 1896 Ga. LEXIS 498 ( 1896 )

Atkinson, Justice.

Tbe 'accused was indicted for tbe offense -of robbery; was convicted, and moved for -a new 'trial, among others, upon tbe ground tb'at tbe court erred in failing to Charge 'the jury that- if they did not believe 'that 'be took tbe goods in question with intent to steal, then they should acquit; and upon the further ground that the court erred in charging the jury as follows: “In determining the various questions in the case, you must 'do that by looking to the testimony of tbe witnesses that have been sworn in the case.”

1, 2. The definition of robbery, as expressed in section 351 of the Penal Code, is inaccurate for want of fullness. It omits the felonious intent as -a constituent element of the offense. The animus furandi is as much involved in the commission of a robbery as in the commission of a larceny. It is as necessary to be alleged and proven in the one case .as in the other. There can be no robbery without an intent to steal; and hence it is legally impossible for the trial judge to give to the jury correct instructions upon the trial of a robbery case, which leave entirely out of view the question of felonious intent. It is not one of those collateral matters concerning which the court is only required to instruct the jury upon request, but it is of the very substance of the offense, and an omission so to instruct the jury would enable them to convict the accused without finding the felonious intent. This court has repeatedly ruled that upon •that class of questions the trial judge should instruct the jury without request. See Strickland v. The State, 98 Ga. 84, and cases there cited. It follows therefore that the failure -of the circuit judge to instruct the jury upon this important branch of the case must result in a new trial.

3. The charge of the court excepted to and above referred to was not, under the decision of this court in the case of Vaughn v. The State, 88 Ga. 731, erroneous. In that case it was ruled that the court did not err in instructing the jury to the effect that in determining the guilt or innocence of the accused they should look to the evidence alone submitted in the case, thus excluding from the consideration of the jury any theories of the defense nesting upon the statement of the accused. The soundness of The doctrine announced in that case has never been formally called in question. Being constrained to recognize the binding force of that decision, this court is not at liberty to do otherwise than approve the instruction to which. exception is taken. The writer of this opinion, however, does not give his full assent to the soundness of the doctrine therein announced. According to his view, if the jury may or may not, at their pleasure, disbelieve the statement of the accused, a condition may exist where they may believe it in preference to the sworn testimony, and if they should, then a theory supported by the statement of the accused favorable to his defense would be entitled to recognition by them and upon it he might be acquitted; and yet the effect of this instruction is altogether to exclude from •the consideration of the jury the very evidence, for evidence it is in a qualified sense, upon which they are authorized to acquit him. At all events, with the law standing in its present condition, the charge was not erroneous; but it would have been more appropriate and given to the accused '■the fuller measure of his legal right had tire circuit judge added to the charge excepted to the following: “and the statement of the accused, giving to the latter such force as you think it entitled to receive.”

4. Other than as above indicated, no errors were committed which will authorize the reversal of the judgment.

Judgnvent reversed.