
    LARCENY AND ROBBERY DISTINGUISHED.
    Circuit Court of Hamilton County.
    Prentice C. Tiller v. The State of Ohio.
    Decided, December 5, 1908.
    
      Criminal Law — Larceny Converted into Robbery by Pwsuit and a Struggle — Violence is Concomitant with the Talcing, When.
    
    T, -while examining rings in a jewelery store, under the pretense that he desired to purchase, seized the tray containing the rings and ran. He was followed by the clerk, and at the door of the store there was a struggle, with the result that T escaped with the tray. Held:
    
    That the pursuit by the clerk and the struggle at the door were concomitant or concurrent With the taking of the rings, and T was properly convicted of robbery as distinguished from larceny.
    
      Raymond RatUff for plaintiff in error.
    
      C. O. Rose, contra.
    
      Smith, J.; Swing, P. J., and G-iffbn, J., concur.
   At the April term of the Court of Common Pleas of Hamilton County, the plaintiff in error was tried upon two counts in the indictment, one charging the 'offense of robbery and the other grand larceny. The jury returned a verdict finding him not guilty of larceny, but guilty of robbery. A motion for a new trial was interposed, upon the overruling of which judgment was entered for the State, and .the prisoner sentenced to the penitentiary.

The sole ground of error urged is that the defendant below, if guilty at all, was guilty of larceny and not of robbery, as the prosecuting witness was not put -in fear, and the violence necessary to constitute the crime of robbery was not concomitant with, but subsequent to the taking of the property.

The circumstances of the taking -as detailed by the prosecuting witness shovúthat .while examining rings -in the store of Mich'ie Brothers, the plaintiff in error grabbed the tray containing them from the counter, placed it under his arm and ran to the door. The prosecuting witness immediately pursued him. The plaintiff in error succeeded in getting out of the door and proceedecl'.to close it when the prosecuting witness attempted to prevent this closing, and -after this struggle at the door the plaintiff in error escaped with the property.

The question is, does or not the evidence disclose that such violence was used as .the statute contemplates and is essential in the crime of-robbery?-

In Hanson v. The State, 43 O. S., 376, it was decided that the violence essential -to the crime of robbery must be concomitant-with the taking -of the property. In other words, accompany the taking — be concurrent with it. This, therefore, raises the question of fact whether the violence used was or was not in contemplation of law concomitant with the taking. Was the grabbing of the tr.ay, the pursuit through the store, the struggle to escape at the door a .part of the act by which the taking was effected? We think that they were. The taking of the property from the prosecuting witness or from his presence -and under his control'was not effected until these various -acts of violence were completed, for the reason that plaintiff in error did not succeed in his attempt to possess himself of the property until after all these acts of violence occurred.

In this respect ,the charge of the court correctly stated the law, and the judgment is affirmed.  