Sweat v. State , 90 Ga. 315 ( 1892 )

Bleckley, Chief Justice.

1. “Bobbery is the wrongful, fraudulent and violent taking of money, goods or chattels from the person of another by force or intimidation, without the consent of the owner.” Code, §4389. The indictment charged robbery by both foi’ce and intimidation. The verdict found the accused guilty of robbery by intimidation. Did the facts proved in behalf of the State, accepting as true all the evidence of the principal witness, embrace the necessary legal elements of the offence found? The material evidence of this witness, or the full substance of it, ma,y be seen by reference to the official report. Other-witnesses were examined, and some of the facts mentioned below are derived from their testimony.

Snider was a strolling laborer, a stranger in this State,, having been here for only one or two months. He was the owner of sixty-two dollars in money. "While he was engaged in picking cotton for one Crew, in Pierce county, the money then being in his coat pocket, and the coat being in the field where he was at work, though, not upon his person, a party of four men came to the vicinity in search of him. Two of them remained out of sight whilst the other two went into the field and arrested him. They put handcuffs on him, took possession of his coat, and then, with him as a prisoner, rejoined the two who had lingered behind. The whole party then proceeded in the direction of Ware county. On the way; and while still in Pierce county, Snider told them that there was money in the pocket of the coat. The bag containing it was taken from the pocket, the money counted, replaced in the bag, and restored to the pocket; the captors saying they wanted him, not his money. At his request and upon his promise not to escape, they took off’ the handcuffs, with a threat to kill him if he attempted to get away. A halt of some hours was made after reaching Ware county, during which he remained a prisoner. This was at the house of one Taylor. Two of the party went no farther (one of them, perhaps, not so far), and did not participate in what afterwards took place. The other two, the men indicted and convicted of the robbery, both of them civil officers of Ware county, one a justice of the peace, the other a deputy-sheriff, carried their prisoner, with his coat and money, to the residence of one of them, the J. P. At this place was a post-office and the J". P. was the postmaster. It was in Ware county about five miles from the farm on which the arrest was made. Here Snider, though a prisoner and not allowed to control his coat and money, was recognized and consulted as the owner. His leave was asked and obtained to deposit the coat in the post-office. Afterwards by putting him in fear his consent was extorted for them to take and keep fifty dollars of the money. They did not in express terms make any direct threat of violence, but what they said was, considering the circumstances and his state of mind, well calculated to excite his fears and was certainly intended to have that effect. They claimed that he had killed two men in Texas. They talked about sending him to Waycross, the county town; said he would have to come to Waycross jail if he did not let them have the money, and that if the “other crowd” got hold of him there would be no getting away, but they thought he could get away if he would let them have the fifty dollars. What other crowd was ref'ei’red to is not explained by the evidence. No doubt it was invented for the purpose of vaguely hinting some mysterious danger, such perhaps as mob violence. They did not pretend or profess to have any authority for their proceedings. So far as appears, they drew entirely upon their imaginations, not only for the other crowd but for the killing of the two men in Texas. He was in their power and they had threatened to kill him if he attempted to escajie. They had kidnapped him by abducting him and carrying him forcibly and against his will from Pierce to Ware county. Construing their conduct and their words together, they did something more than threaten him with imprisonment in Waycross jail; they raised in his mind the apprehension of some vague and indefinite violence to his person, either from themselves or from others whom they designated as the other crowd. He describes the state of his mind thus: “I was so badly frightened I did not know what they would do. . . I was in great fear of danger if I did not let them have the money — I was frightened.” He declared at the time of his arrest the nature of the fear which that proceeding excited. He said all he was afraid of was they were going to kill him. This appears from the evidence of one of the Taylors. There is every probability that the fear which then began was increased by what followed. Well might a simple-minded laboring man be frightened by such lawless and desperate conduct, and by such mysterious and insinuating conversation on the part of men who had for the time being acquired a 'complete dominion over his person. Their purpose was to deprive him of .his money, not by open force and violence, but by obtaining his formal consent for them to take it. In order to procure this consent it was necessary for them to operate upon his fears. This they did most effectually. They deny in their statements to the court and jury that they took his money at all, but this denial has been discredited by the jury. We agree with the jury in thinking that a robbery by intimidation was committed.

Was the offence perpetrated in Pierce or in Ware county? It has already been stated that the party which went into Pierce county consisted of four men. These were the two Sweats and the two Taylors. Some 'of the evidence indicates that James Sweat was the original and prime mover in the proceeding. Very likely the other three men took part in it at his request; and it is altogether probable that the Taylors acted in good faith under the belief, induced by the representations of James Sweat, that Snider was a fugitive from justice. The men who actually made the' arrest in Pierce county were Randall Sweat and Proff Taylor. They secured not only the prisoner but the coat which had the money in the pocket. But neither of the Taylors kept up their connection with the enterprise until the money was finally taken. They dropped out, one of them sooner perhaps, the other at the first stopping place after the party reached Ware county. The Sweats alone did the balance. When the Taylors withdrew, no robbery had been completed. Up to that time the declared purpose was to take Snider, not his money, and there ivas no avowed change in the purpose until after James Sweat’s house was reached and the coat with the money in it had, with Snider’s permission, been deposited in the post-office. The request for that permission implied that the money, as well as the coat, was still the property of Snider, and had not absolutely been taken from him. True, he was not allowed to have independent control of it, but he was not allowed to control himself. He was a prisoner, and certainly it cannot be held that when one is in custody, although unlawfully, he has been already robbed by his captors if they have, after violently seizing him, assumed control of his money as well as of himself, and will not for the time being allow him to do as he pleases with either. He may be robbed afterwards either by detaining his money and suffering him to go, or by carrying away his money and forcing him to remain, provided that in doing either, intimidation be used to effect the object. In this case the takiug which occurred in Pierce county was but a partial or qualified taking. It became complete and final in Ware when the animus furandi first manifested itself with certainty respecting it. Even if this animus existed on the part of the Sweats at the time of the arrest, the act of taking may be considered as a progressive one, having its beginning in Pierce and its completion in Ware. It is certain that but for what occurred in Ware no robbery would have been consummated. If Snider had been allowed to carry away his money when lie left Sweat’s house, all which had then or previously occurred would at most have amounted only to an attempt to rob. No court could or would hold that a robbery had been perpetrated. Our conclusion is that the offence was committed in Ware county, and consequently that the superior court of that county had jurisdiction.

2. One ground of the motion for a new trial is in these words : “Because the court erred in allowing the witness McGahee, for the State, to testify, over the objection of the defendants’ counsel, what his feelings, surprises and suspicions were when he met the witness and prosecutor, George Snider; and further, in allowing the said McGahee, over objections of defendants’ counsel, to relate the conversation had with said George Snider, the defendants not being present, said •conversation being had subsequent to the time the robbery was alleged to have been committed and not being a part of the res gestee, and was hearsay and illegal, and tended to prejudice defendants’ case before the jury; said objections having been made at the time of the introduction of said evidence, upon the ground herein stated.” Certainly this is too vague and indefinite to be considered by a reviewing court. It is impossible to say what the evidence was which is here complained of. Whether it might be ascertained by looking out of the motion and exploring the brief of evidence we are not called upon to say, inasmuch as our dealings are only with errors plainly and distinctly assigned. When oral evidence is to be brought under review, the bill of exceptions need not recite it,'if there is a recital of it in the motion for a new trial. To this extent the bill of exceptions may be aided by the motion, but as to oral evidence which neither of these recites, the question of error in admitting or rejecting it is not duly represented.

3. The newly discovered evidence was merely cumulative or impeaching, or both, and was therefore not cause for a new trial. There was no error in overrulthe motion. Judgment affirmed.