
    Richmond
    Stanley Ayres v. Commonwealth of Virginia.
    January 14, 1932.
    Present, Campbell, C. J., and Epes, Hudgins and Browning, JJ.
    The opinion states the case.
    
      Charles Henry Smith, for the plaintiff in error. -
    
      John R. Saunders, Attorney-General, and Edwin H. Gibson and Collins Denny, Jr., Assistant Attorneys-General, for the Commonwealth.
   Hudgins, J.,

delivered the opinion of the court.

Stanley Ayres was convicted of robbery and sentenced to eight years’ confinement in the penitentiary. He alleges in his petition that the trial court committed several errors. We deem it necessary to consider only the action of the trial court in refusing to set aside the verdict.

The indictment charged that the accused, with others, by partial strangulation, beating, and violence to the person of one William J. Vaughan, stole from him the sum of $11.00.

The evidence shows that Stanley Ayres and Arthur Gentry planned with Thelma Kingslow and Edith Wilson that the girls should “pick up somebody on the streets, of Alexandria and take them down the road to be robbed.” Accordingly, the girls enticed, or permitted, two utter strangers, William J. Vaughan and William Clapp, to accost them on the street, and immediately got in a car with them and left Alexandria, followed by Stanley Ayres, Arthur Gentry, and Caesar Gaddis, a negro, in another car. Soon after leaving the city, the Vaughan car turned off the main highway into a side road down which they proceeded a short distance and then parked the car and cut off the lights. Ten to fifteen minutes later, Stanley Ayres and his companions drove up. Ayres and Gentry got out of their car and went over to the one which was occupied by Vaughan, Clapp and the two girls, and Ayres said: “Thisis a............of a nice way to be going home.” The two girls, Vaughan and Clapp then got out of the car and the girls went over and got in the Ayres car. The four men started to fight. While the fighting was going on, the girls sent the negro, who had remained in the car, to get Ayres and Gentry. They came back with him and all five got into the Ayres car and started back to Alexandria. On the way to the city, Ayres produced a pocket book, which he said he had gotten “off the fellow,” took out $10.00 and divided it among his companions, giving each $2.00.

The evidence shows that Stanley Ayres and Edith Wilson, though unmarried, had been living together as husband and wife, and that they had been jointly charged with the commission of other crimes; that Caesar Gaddis had been convicted of bootlegging.

Code, section 4405, prescribes the penalty for robbery, but does not change the common law essentials of the crime. At common law robbery is defined as “the taking, with intent to deprive the owner permanently, of personal property, from his person or in his presence, against his will, by violence or intimidation.” Green v. Commonwealth, 133 Va. 695, 112 S. E. 562, 563; Brookman v. Commonwealth, 151 Va. 522, 145 S. E. 358.

The Commonwealth failed to prove the taking of any property of William J. Vaughan from his person, or in his presence, by force or otherwise, nor is there any evidence showing that he has been deprived of any of his property. The statement claimed to have been made by the accused, i. e., that he got the $10.00 “off the fellow,” does not show how or from whom he obtained the money. The circumstances are suspicious, but the accused should not be deprived of his liberty on mere suspicion.

The Commonwealth failed to prove that the crime of robbery, as charged, has been committed, hence the judgment of the trial court must be reversed, the verdict of the jury set aside, and the case remanded for a new trial. '

Reversed.  