Sherman v. State

4 Ohio C.C. 531

• Court: Ohio Circuit Courts
• Decided: March 15, 1890
• Status: Published

Opinion

Bentley, J.

(orally).

In the case of Robert L. Sherman v. The State of Ohio, we were in consultation with Judge Scribner concerning it, before he went away, and we came to a certain conclusion, which we will briefly announce.

Of course the question is — and the only question is : what is the violence which is required in order to constitute a robbery ? In this case, the record indicates that there was no putting in fear whereby the property was obtained from the prosecuting witness. The question is, whether violence, actual violence, was used such as would meet the requirements of the statute.

It seems from the testimony that the robbery was committed by snatching or jerking the box which contained the money stolen, from its position between the body and the arm of the prosecuting witness, and that then, immediately, instantly, a blow was given by the defendant, with the box, to the prosecuting witness.

It is argued, and various cases are cited to sustain the position, that this violence occurred after the taking of the property from the' possession of the prosecuting witness, and that its object was not for the purpose of getting possession of the property but to effect an escape, or to retain possession of the property, or both, and it is claimed that that is not sufficient.

It-seems to be very clear, from the authorities, that if the violence occurred some time — after some interval had elapsed— after the taking, that the violence thus administered would not be sufficient. But the court charged the. jury in this case that if the box was snatched substantially as claimed by the prosecuting witness and the blow instantly given, then and there, that it would be such violence as, with other matters concurring, would sustain the charge of robbery.

For myself, I was considerably impressed with the argument made on behalf of the defendant, and I think I may say that my brethren on the bench were also.

There remains a question of fact raised — whether violence occurring in that way was or w’as not, in contemplation of law,-concomitant with the taking of the property. A blow that was so instantly given, whether or not it might not be considered as a part of the same transaction by which the taking was effected. I think I may say for all the judges that we regard it as a matter of considerable doubt whether or not the charge in this particular was correct, or whether, under the circumstances as disclosed by the record a robbery was in fact committed; but this is a petition in error, and, of course, for us to be justified in reversing the judgment we must feel perfectly clear, or at least reasonably clear, that the law was not correctly defined by the court below or that the facts clearly did not support the charge. We think that this is a case which it would be eminently proper for the Supreme Court to pass upon, at an early day, and while regarding it as a case of doubt, not being satisfied that the rulings were clearly erroneous to a degree that would warrant us in disturbing the verdict, we have concluded to affirm the judgment. That is the conclusion of the court and that will be its order.

Note — The case was taken to the Supreme Court on motion for leave to file petition in error to the Circuit Court of Lucas County, which motion was on May 13, 1890, overruled by the court. — (Ed. W. L. B.)