John W. Richardson v. United States

EDGERTON, Senior Circuit Judge:

Appellant was charged with robbery (count one), assault with a dangerous weapon (count two), and carrying a dangerous weapon (count three). A jury found him guilty as charged on count one, guilty of simple assault on count two and not guilty on count three.

The complaining witness Snowden testified that appellant and another held him up at gunpoint and took $98 from his wallet. Appellant testified that Snowden, who had recently been convicted of a gambling offense, owed him a $270 gambling debt which he had several times unsuccessfully tried to collect. He admitted reaching into Snowden’s wallet and removing $138 without his consent, but denied having a gun. His mother corroborated his story of the gambling debt and testified that Snow-den was a known gambler.

The chief ground of this appeal is the trial court’s denial of appellant’s request for the following standard instruction:

Evidence has been introduced that the defendant believed that he had a right to take the property he is alleged to have stolen.

If a person takes the property of another, but does so in the good faith belief that he has a right to take the property, the specific intent essential to the crime of robbery is lacking.

The Government must prove beyond a reasonable doubt that the defendant acted with the specific intent to steal. If you have a reasonable doubt whether or not the defendant acted with a specific intent to steal, you must find him not guilty.¹

I.

A defendant is not guilty of robbery unless he has a specific intent to take the property of another. Jackson v. United States, 121 U.S.App.D.C. 160, 348 F.2d 772 (1965). Viewing the evidence most favorably to the defendant, as we must where he appeáls from the denial of a favorable instruction, be believed in good faith that he was entitled to the money. If so, he did not have that specific intent. We therefore find that the requested instruction should have been given²

The government’s position seems to be that no instruction on a claim of right is necessary unless the defendant had a legally enforceable right to the property he took. But specific intent depends upon a state of mind, not upon a legal fact. If the jury finds that the defendant believed himself entitled to the money, it cannot properly find that he had the requisite specific intent for robbery. Cf. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) (An unfounded but genuine belief that the property taken had been abandoned negatives specific intent).

The government urges affirmance for policy reasons, claiming that a reversal of this robbery conviction would encourage violent takings and would frustrate the policy of the law that a successful gambler may not recover his winnings from the loser. But “The taking and carrying away of the property of another in the District of Columbia without right to do so” is a misdemeanor. D.C. Code (1967 ed.) § 22-1211. Since this section can be violated without specific intent, it provides a deterrent to self-help by a winning gambler without rejecting the principle that specific intent turns on the actor’s state of mind and not upon an objective fact.

II.

Appellant contends that the court should have instructed on the lesser include offenses of taking property without right and petit larceny.

A lesser included offense instruction is appropriate only where it is justified by the evidence. Burcham v. United States, 82 U.S.App.D.C. 283, 284, 163 F.2d 761, 762 (1947). We agree that appellant was entitled to an instruction on taking property without right since from the evidence the jury could reasonably find that he lacked the requisite specific intent for robbery. However, having admitted that he took the money from Snowden’s person without consent, appellant could not be guilty of petit larceny, which precludes a forceful taking. “Force” includes a physical taking of property from the person of another whether or not there is resistance. Jackson v. United States, 123 U.S.App.D.C. 276, 278, 359 F.2d 260, 262 (1966). Thus the trial court’s refusal to instruct on petit larceny was not error.

Appellant does not contest his assault conviction in this appeal. We reverse his conviction of robbery.

Reversed.

1 . Instruction No. 117, Junior Bar Section of D.C. Bar Ass’n, Criminal Jury Instructions (1966). The court instructed generally on specific intent.

2 . Accord: State v. Steele, 150 Wash. 466, 273 P. 742 (1929). The majority rule in cases involving a forceful taking of money under color of a liquidated debt is that the requisite specific intent for robbery is lacking. See, e. g., People v. Butler, 65 Cal.2d 569, 55 Cal.Rptr. 511, 421 P.2d 703 (Sup.Ct.1967); Butts v. Commonwealth, 145 Va. 800, 133 S.E. 764 (1926); cases collected in 46 A.L.R. 2d 1227.