State v. Bell

233 N.W.2d 920, 194 Neb. 554, 1975 Neb. LEXIS 855

• Court: Nebraska Supreme Court
• Decided: October 23, 1975
• Docket: 39943
• Status: Published

Opinions

Newton, J.

Defendant was convicted of robbery. The evidence shows that he entered a filling station, picked up the cash register when the attendant’s back was turned, and made off with it. He was pursued by the attendant, threw the cash register in an automobile driven by a companion, and leaped in. The pursuing attendant tried to get the cash register by reaching through an open window, was struck and pushed by the defendant, and finally fell from the moving car.

Defendant assigns as error the failure of the court to instruct on the lesser included offense of larceny from the person and the refusal to direct a verdict because the taking was not accomplished with force, violence, or putting in fear. We affirm the judgment of the District Court.

There was no request for an instruction on a lesser included offense. This assignment must fail. “In the absence of a proper request, the trial court is not required to instruct in regard to lesser included offenses.” State v. Maxwell, 193 Neb. 807, 229 N. W. 2d 195. See, also, State v. Warner, 187 Neb. 335, 190 N. W. 2d 786.

The second assignment of error presents a proposition on which the authorities are divided. We have said, in regard to larceny: “ ‘Any removal of the property, after the same is under the complete control of the taker, from the spot where found, with the requisite intent of the taker to steal, is a sufficient asportation * * ” (Emphasis, supplied.) Daugherty v. State, 154 Neb. 376, 48 N. W. 2d 76. The precise point presented in connection with robbery has not previously been presented in this jurisdiction. The primary question would appear to be in regard to when the taking had been accomplished or completed. Can it be said that “the taking” is no longer in process when a struggle is in progress for possession of the stolen property? Or is the struggle for possession an essential part of the taking? Here the defendant was intercepted before he could make good his escape with the stolen property. Until he did escape with it, although there was a taking, it was not completed.

In People v. Kennedy, 10 Ill. App. 3d 519, 294 N. E. 2d 788, defendant removed money from the safe in a filling station; the attendant attempted to recover the money and was assaulted. It was held to be robbery ;and the court stated: “The record is clear that force was used to complete the taking of the money from the possession and custody of its custodian, and was a means used to accomplish such taking. * * * while the taking may be without force, the offense is robbery if the departure with the property is accomplished by the use of force.”

In People v. Anderson, 64 Cal. 2d 633, 51 Cal. Rptr. 238, 414 P. 2d 366, it was held: “In this state, it is settled that a robbery is not completed at the moment the robber obtains possession of the stolen property and that the crime of robbery includes the element of asportation, the robber’s escape with the loot being considered as important in the commission of the crime as gaining possession of the property. * * *

“Accordingly, if one who has stolen property from the person of another uses force or fear in removing, or attempting to remove, the property from the owner’s immediate presence, as defendant did here, the crime of robbery has been committed.” See, also, People v. Sanders, 28 Mich. App. 274, 184 N. W. 2d 269; Durham v. Commonwealth, 214 Va. 166, 198 S. E. 2d 603.

We conclude that the record does show the use of force during the taking of the cash register and the judgment of the District Court is correct.

Affirmed.

Clinton, J., concurs in the result.