Jarrett v. State ( 1979 )

George Rose Smith, Justice.

By information Jarrett was charged with theft of property and with robbery, with three previous felony convictions. At a bench trial the court found Jarrett guilty of the two offenses and sentenced him to 30 days’ confinement for the theft and to 5 years for the robbery. For reversal it is argued that the proof is insufficient to sustain a finding of guilty upon either charge.

At the time of the offenses police officer Baer, off duty, was acting as a security guard at a grocery store. From a place of concealment the officer saw Jarrett and three other men load a grocery cart with packages of meat. The other three then went toward the front of the store, but Jarrett pushed the loaded cart into a storeroom, marked Employees Only. There, within the officer’s sight, Jarrett began to put the packages of meat into two large sacks that had been stuck in the back of his pants. When Jarrett saw the officer he started to run, but he stopped when the officer drew his revolver and ordered him to stop. Baer tried to handcuff Jarrett and succeeded in getting one bracelet on his left wrist. The officer’s testimony then continues:

I... was attempting to put the other bracelet on his right wrist when the fight started. . . . He broke and tried to run, and of course I was holding on to the one bracelet, and I’ve got a gun in the other hand, which means I can’t grab him. We started fighting, bouncing off. There’s all kinds of merchandise, boxes, there’s an ice machine, a baler. We bounced off the ice machine and the baler. I tried to handcuff him to the baler, because my car was out front with two more suspects. We continued to fight, wrestle, he was continually trying to break and get away, pushed me away, knocked me away. . . . We got up closer to the baler, and of course we are still fighting and I was trying to handcuff him to it.

At that point the officer’s gun went off accidentally. Both men stopped fighting, and Jarrett was handcuffed and taken into custody.

First, the proof supports the court’s finding that Jarrett was guilty of theft of property. Under the new Criminal Code a person commits theft of property if he knowingly exercises unauthorized control over the property of another person with the purpose of depriving the owner thereof. Ark. Stat. Ann. § 41-2203 (Repl. 1977). It was reasonable for the trial judge to believe that if Jarrett meant to buy the large quantity of packaged meat he would have taken it to the check-out counter. Instead, he rolled the cart into a storeroom, where the public was not supposed to be, and began putting the meat into sacks. The trial judge could infer from the evidence that Jarrett was exercising unauthorized control over the property with the intention of taking it out of the store in sacks, as if it had been paid for. In fact, no other explanation for Jarrett’s conduct is readily apparent.

The proof also supports the conviction for robbery, because the crime of robbery has been materially changed by the Criminal Code. As pointed out in the Commentary to Section 41-2103, under prior law robbery consisted of the felonious taking of money or other valuable thing from the person of another by force or intimidation. That definition put the primary emphasis upon the taking of property. But the Code redefines robbery to shift the focus of the offense from the taking of property to the threat of physical harm to the victim. As the Commentary states: “One consequence of the definition is that the offense is complete when physical force is threatened; no transfer of property need take place.”

Under the Code robbery is defined in this language:

A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. [§ 41-2103.]

“Physical force” means, among other things, any bodily impact or the threat thereof. § 41-2101

Needless to say, it is our duty to enforce the new statute as it is written, which we have actually already done in Wilson v. State, 262 Ark. 339, 556 S.W. 2d 657 (1977). Here the proof supports a finding that Jarrett, immediately after committing a theft, resisted apprehension by employing or threatening to employ physical force upon Officer Baer. The evidence therefore sustains the conviction.

Affirmed.

Hickman and Purtle, JJ., dissent.