Cooper v. State

Murphy, C.J., delivered the opinion of the Court. Appellant was convicted at a court trial of robbery and sentenced to three years’ imprisonment. He contends on ⁴⁷⁹ this appeal that the evidence was insufficient to support the conviction. The evidence adduced at the trial showed that on July 18, 1969 at approximately 11:15 p.m., Jack Glazer was in the illuminated parking lot of the Laurel Raceway looking for his car when appellant, whom he thought to be an employee of the Raceway, volunteered to assist him.

Glazer had been at the Raceway for several hours and was “high” from drinking. He was coatless and wearing Bermuda shorts, the pockets of which, according to an eyewitness, “sort of stuck open” revealing “some sort of bills” in the left front pocket. Appellant’s offer of assistance being accepted by Glazer, he approached Glazer from the left side. Glazer testified that thereafter appellant “stuck his hand in my left pocket and grabbed all my money and started to run.” Asked whether the money was “down in your pocket or was it sticking out of your pocket,” Glazer replied that “It was in my pocket”; that appellant reached “all the way in” and he felt appellant’s hand in his pocket; that appellant “knew precisely where the money was”; and that the incident “happened in a few seconds and it startled me.” Glazer testified that $70.-00 in loose bills was taken, one or two being 20’s and the remainder 10’s.

Asked whether he felt anything other than appellant’s hand in is pocket, Glazer said, “Well, I —well, like he put his hand, maybe, on my back.” Glazer’s companion Harold Schenker witnessed the crime. He testified that appellant had “gotten behind” Glazer and “had sort of jostled with him, put his hand in his pocket and took some money and he then started to run away.” Asked what he meant by “jostled,” Schenker replied that appellant had gotten behind Glazer and stuck his hand in his pocket. The evidence showed that appellant was apprehended after a short chase. The trial judge, in convicting appellant of robbery, found the requisite force to exist because, in Ms view of the evidence, it showed that appellant had put his hand on ⁴⁸⁰ Glazer’s back and Glazer felt appellant’s hand touch his body as it entered his pocket.

Robbery, a common law crime in Maryland, is larceny from the person. accompanied by violence or putting in fear. Williams v. State, 7 Md. App. 683 ; Halcomb v. State, 6 Md. App. 32 ; Osborne v. State, 4 Md. App. 57; Harrison v. State, 3 Md. App. 148 . The violence may be actual as by the application of physical force, or it may be constructive as by intimidation or placing the victim in fear. Wiggins v. State, 8 Md. App. 598 .

Where, as here, it is •clear that the victim was neither intimidated or put in fear, there must be evidence of actual violence preceding or accompanying the taking. See Giles v. State, 8 Md. App. 721. Actual violence, it is said, implies personal violence; if there is any injury to the person of the owner in the taking of the property, or if he resists the attempt to rob him, and his resistance is overcome, there is sufficient violence to make the taking robbery, however slight the resistance. Giles v. State, supra; Williams v. State, supra.

The degree of force used is immaterial so long as it is sufficient to compel the victim to part with his property. 46 Am. Jur. Robbery, Section 15. In other words, sufficient force must be used to overcome resistance and the mere force that is required to take possession, when there is no resistance, is not enough, i.e., the force must be more than is needed simply to move the property from its original to another position; there must be more force than is required simply to effect the taking and asportation of the property. 2 Wharton’s Criminal Law and Procedure (Anderson Edition) Section 555.

Thus, it is not robbery to obtain property from the person of another by a mere trick, and without force, or to pick another’s pocket without using more force than is necessary to lift the property from the pocket; nor is it robbery to suddenly snatch property from another when there is no resistance and no more force, therefore, than is necessary to the mere act of snatching. Clark and Marshall Crimes (6th Edition) Section 12.13; Annotation 8 A.L.R. 359 . Conversely, it has been held robbery “for a person to ⁴⁸¹ seize another’s watch or purse, and use sufficient force to break a chain or guard by which it is attached to his person, or to run against another, or rudely push him about, for the purpose of diverting his attention and robbing him, and thus take a purse from his pocket.” Clark and Marshall Crimes, Section 12.13. And as that preeminent text authority further notes in the same Section, the fact that surprise aids the force employed to accomplish the taking will not prevent the force from aggravating the offense, so as to make it robbery, it not mattering that the victim does not know that he is being robbed.

Within these rules, it has been held robbery to put an arm around one’s neck, ostensibly to whisper to him, and then pick his pocket; or to pick one’s pockets while scuffling with him; or while jostling him; or while running against him; or while pushing him; or while crowding and putting one’s arms around him. 8 A.L.R. at 360-361. In the present case, the evidence showed that appellant suddenly thrust his hand into Glazer’s pocket and snatched therefrom a number of loose bills, some of which were at least partially exposed to view. The victim did not resist. He was not injured.

He was not placed in fear. The force used was that, and only that, necessary to remove the money from the victim’s pocket. While the victim testified that appellant “maybe” put his hand on his back, we believe such testimony too speculative to be entitled to any probative value as evidence that the appellant did in fact do so; and the testimony of Schenker that the victim