
    THE STATE v. CALVIN SOWLS.
    The distinction between Robbery and Forcible Trespass is, that in the former a felonious, intention exists, and in the latter it does not.
    The question of felonious intention, is one for the jury, acting under such instructions from the court as each case may require.
    If, in March, 1865, one, who bona fide thought that he was acting under the orders of a Captain of the Home Guard, went to a dwelling house, and forcibly possessed himself of a sword, not for the purpose of appropriating it but solely to disarm the prosecutor; held, that it would not have been robbery.
    
    Illustration of the difference in the duty of the court in cases where there is slight evidence, and in those where there is none.
    By Pearson, C. J., concurring, Forcible Trespass is the taking of the personal property of another by force; Robbery, the fraudulent taking of the personal property of another by force.
    Robbery, tried at Fall Term, 1866, of the Superior Court of Columbus, before his Honor, Gilliam, J.
    
    Upon the trial it was shown that the defendant, with three others, armed with guns, went to the .house of one Stanly, in his absence, his father and his wife being there, and asked if Stanly did not have a pistol, a gun and a sword. Upon being answered that he had a sword, but no gun or pistol, they ordered it to be delivered, which was done. The father and the wife of Stanly were in fear of them. They then asked for brandy, and being told that there was a little, kept for sickness, said “we want it;” and, out of fear, this also was delivered, whereupon all but one of the party drank of it twice, and then -left. Upon Mrs. Stanly’s seeming to be much alarmed, one of the party said, “ do not be alarmed, you shall not be hurt.”
    Stanly testified that he was concealed in the woods that day out of fear of personal violence which had been threatened; also that in a conversation with the defendant during that term of the court, he confessed that he was one of those who took the sword, adding that he acted under the orders of J. W. Meares. Witness also said that Meares had been a Captain in a company of Home Guards in the State service, but that his company had been disbanded, and he then had put himself at the head of a band of men who went about the country robbing and plundering.
    “ Upon this evidence it was insisted by the counsel for the defendant that only a case of forcible trespass was established, and the court was'requested so to instruct the jury; but the court refused to give the instructions asked for, and, after defining the offences of Robbery and Larceny, to which no exception was taken, instructed the jury that they could not convict the defendant unless they were satisfied from the evidence, beyond a rational doubt, that the taking and carrying away was with a felonious intent. If they were so satisfied, they might convict; otherwise, they would acquit-The court explained that the taking and carrying away are felonious, where the goods are taken against the will of the .owner, either in his absence, or in a clandestine manner, or ysdiere possession is obtained either by force, or surprise, or by any trick, device, or fraudulent expedient, the owner not voluntarily parting with his entire interest in the goods, and where the taker intends in any such case fraudulently to deprive the owner of his entire interest in the property, against his wall.
    The counsel further requested the court to instruct the jury that, if they believed from the evidence that the defendant acted under the orders of Meares, believing that Meares had a lawful military command, they should acquit, whether Meares was authorized to give such orders or not. To this the court answered, there is no evidence that Meares had any military authority, or that the defendant acted under the belief that he had.”
    The defedant was convicted.
    Rule for a new trial; rule discharged; Judgment, and Appeal.
    
      Attorney General, for the State.
    No counsel for the defendant.
   Battle, J.

The prisoner was indicted at common law for an alleged act of robbery from the person.

This offence is defined to be a felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence, and putting him in fear.” 2 East. P. C., 707; Roscoe’s Cr. Ev., 890.

It must be done animo furandi, with a felonious intent to appropriate the goods taken to the offender’s own use. Roscoe’s Cr. Ev., 895. Although a person may wrongfully take the goods, yet unless he intended to assume the property in them, and to convert them to his own use, it will amount to a trespass only, and not to a felony. 1 Hale’s P. C., 590. As an illustration of this principle, Mr. Roscoe cites a case which occurred in Scotland. A scuffle took place on the high road between the prosecutor and the prisoner, in the course of which the former was deprived of his hat, and a quantity of articles out of his pockets, which were aftewards found by the road side. But as it appeared that he was drunk at the time, and the articles might have been lost in the struggle, without any intent of felonious appropriation by the prisoner, the latter was acquitted. Roscoe’s Cr. Ev., 896, citing Alison’s Prin. Cr. Law of Scot., 358.

From these authorities it is apparent that the distinction between robbery and forcible trespass is, that in the former there is, and in the latter there is not, a felonious intention to take the goods, and appropriate them to the offender’s own use. This rule of law seems plain enough, but there is often a doubt about its application, arising from the difficulty of ascertaining the true intent of the offender at the time of the taking. Now this intent is a question of fact, and must be submitted to the jury with such instructions from the court as the circumstances of each case may require.

Upon the facts disclosed by the testimony in this case, the only ground which the counsel for the prisoner could take to show the want of a felonious intent was, that the prisoner was acting, or supposed that he was acting, under the orders of one J. W. Meares, who held, or was supposed to hold a military commission of some sort in the State service. The transaction was alleged to have occurred in March, 1865, which’was, as we know, before the termination of the late war. There was at that time, as we also know, a military organization in the State called the Home Guard. If the prisoner were acting in obedience to orders issued by the Captain of a company of that guard, or bona fide thought that he was acting under such orders, and in obedience to them took the prosecutor’s sword, not for the purpose of appropriating it to his own use, but solely with the view to disarm the prosecutor, he could not be held to have been guilty of robbery, no matter how wrongfully he may have acted. Under such circumstances the animus furandi would be as much wanting as it was in Hall’s case, 3 Car. & P., 409, (14 Eng. C. L. Rep., 337,) which is thus stated by Mr. Roscoe: — The prisoner had set wires in which game was caught. The game-keeper finding them, was carrying them away, when the prisoner stopped him, and desired him to give them up. The game-keeper refused, upon which the prisoner lifting up a large stick, threatened to beat out his brains if he did not deliver them. The keeper fearing violence delivered them. Upon an indictment for robbery, Vaughan, Baron, said: “I shall leave it to the jury to say, whether the prisoner acted under an impression that the wires and the pheasant were his own property ; for, however he might be liable to penalties for having them in his possession, yet if the jury think that he took them under a bona fide impression that he was only getting back the possession of his own property, there was no animusfurandi, and the prosecution must fail.” The prisoner was acquitted.

It was for the purpose of invoking the application of this principle, that the prisoner’s counsel asked for the last instruction set forth in the bill of exceptions, to wit, that if the jury believes from the evidence that the prisoner acted under the orders of Meares, believing that he had a lawful military command, they should acquit, whether Meares was authorized to give such orders or not.

The Judge declined to give the instruction, saying, “there was no evidence that Meares had any military authority, or that the prisoner acted under the belief that he had such authority.” In saying this we think his Honor erred.

In looking over the testimony we find it stated by the prosecutor that Meares had been a Captain in the Home Guard, but was not so at the time of the alleged robbery; that the company had been disbanded, and Meares had then put himself at the head of a band of men who went about the country plundering and robbing. The same witness testified that the prisoner had freely and voluntarily made a confession to him, in which he had acknowledged that he was one of the party who took the sword, saying at the-same time “ that he acted under the orders of J. W. Meares.”' Here was, in our opinion, some evidence that Meares had a. military command at the time of the alleged robbery, and that the prisoner was acting under his orders. The transaction took place in March, 1865, and the testimony was given in October, 1866, and after an interval of nineteen months, in the midst of the anxieties and distractions attendant upon the close of a great civil war, there was certainly ground tor contending that the prosecutor was mistaken as to the time when Meares’ company of Home Guards was disbanded. This view is sustained by the fact that the prisoner and his associates did not demand anything but the sword, pistol and gun of the prosecutor, and took only the sword after learning that the pistol and gun had been carried off, telling the wife of the prosecutor that she need not be frightened as they did not intend to hurt her. We cannot, and do not, pretend to say that the testimony was sufficient to produce an acquittal of the prisoner, but we think it was sufficient to justify the counsel in asking that it should be submitted to the jury for their consideration. Had it been properly left to them, and they had decided it adversely to the prisoner, he would have had no cause for complaint; but as it was withheld from them, there was an error-committed, which entitles him to a venire de novo.

Pearson, C. J.

I fully concur in the opinion that the prisoner is entitled to a venire de novo.

His Honor erred in not explaining to the jury the difference between a forcible trespass and robbery, to which his attention was called by the prisoner’s counsel. I believe the prisoner was convicted of robbery because the jury did not understand the difference between the two offences. Forcible-trespass is the taking by force the personal property of another. Robbery is the fraudulent taking by force the personal property of another.

There can be no doubt as to the force; for, although the prisoner told the good woman that she need not be alarmed, still there was the show of force, the multitude of men with arms; and we learn from Foster that the party need not be “ put in fear.” If one takes the personal property of another, with intent to appropriate it to his own use slyly, with stealth, showing an intention not to let the owner know that it is taken or who took it, he steals; if he takes it forcibly, with an intent to appropriate it to his own use, but does it openly and above-board, he commits a forcible trespass; but if, besides this, the taking is done in such a manner as to show an intent to defraud the owner, by concealing from him who took it, so that he shall not know what has become of his property, and against whom to bring his action to «recover it, or damages for the taking, and an intent to elude public justice. This constitutes the animus furandi, and it is robbery. These are plain distinctions to be deduced from the books. See Foster’s C. L., 123, 128, 129, A.

In this case there is no evidence that the prisoner endeavored to conceal from the owner what had become of his; sword, or who had taken it; so he knew against whom to. bring his action and to direct the arm of public justice.. If the party had gone there disguised, for instance blacked like negroes or having masks on, that would have been-pregnant proof of an intent to defraud, or if they had demanded and taken money, or clothes, or jewelry, or articles, of like kind, that would have tended to give complexion to the act; but they merely, in the day time, demanded the gun, pistol and sword, and took the sword and went off with it and have staid in the same neighborhood until this time, it shows that their purpose was simply to disarm one whom they thought might be dangerous to their cause, if allowed to keep arms. So it seems to me there was no ingredient of robbery except the force; in other words, there was no fraudulent felonious taking, with an intent to appropriate “ cama Uteri,” no animus furandi, and the prisoner was entitled to full instructions upon the law; more especially, as in these evil times the distinction between these offences has been very generally confounded in the newspapers, and in ordinary parlance.

The fact of demanding liquor and taking a drink does not jn my opinion affect the case much in one way or the other, and only tends to show the careless state of the country.

Per Curiam. Venire de novo.  