State v. Price , 38 Idaho 149 ( 1923 )

DUNN, J.

— Appellants were charged in the district court of Bannock county with having robbed one Lee Lewis of $45, and on the trial the jury found them guilty as charged. The judgment of the court fixed the punishment of appellants at not less than five years in the state penitentiary, from which an appeal was taken.

The information in this case was signed by “H. O. Mc-Dougall, Acting Prosecuting Attorney, Bannock County, Idaho,” and the first assignment of error attacks the information and all proceedings under it as void because the record fails to disclose the appointment of H. O. Mc-Dougall as special prosecutor, or any reason for such appointment. No objection to the information was made in the court below on this ground, and while the record should have shown the appointment of a special prosecuting attorney, and the reason therefor, in the absence of such showing it will be presumed that one or more of the statutory reasons therefor existed, and that the appointment was properly made by the trial court. (State n. Yturaspe, 22 Ida. 360, 125 Pac. 802; State v. Perry, 4 Ida. 224, 38 Pac. 655.) This objection could have been presented to the trial court either by demurrer, under subd. 5 of C. S., sec. 8870, or by motion to set aside the information, under subd. 1 of C. S., sec. 8863. No such objections having been urged in the court below, they are waived under the provisions of C. S., secs. 8878 and 8864.

The next assignment of error is based upon the following instruction to the jury:

“You are instructed, gentlemen of the jury, that if a person losing at cards voluntarily delivers the money lost to the winner’s actual possession, the winner owns the money, so that the forcible taking of it from his possession may constitute robbery.”

"We think this instruction constitutes ground for reversing the judgment. After the jury had retired they returned into court and requested the court to inform them as to the ownership of the money alleged to have been taken in the robbery. This, of course, the court could not do, but in the course of the interview between the court and the jury the court called attention of the jury to this instruction, together with the instruction defining robbery. Considering this request of the jury for information, it seems improbable that without this instruction the jury would have found the defendants guilty of the crime of robbery.

While it is held by some courts that money won in an ordinary bet and voluntarily paid over becomes the property of the winner (Blain v. State, 34 Tex. Cr. 448, 31 S. W. 368; Carroll v. State, 42 Tex. Cr. 30, 57 S. W. 99; Coker v. State, 71 Tex. Cr. 504, 160 S. W. 366), we are not prepared to indorse this doctrine. We know of no law in this state that justifies a holding that one may acquire a valid title to money or other property, either real or personal, by the simple but unlawful process of gambling.

It has been held that if two persons play and bet at cards and the loser wrongfully, fraudulently and by force and violence compels the winner to surrender to the loser the money won, this is not robbery. (Gant v. State, 115 Ga. 205, 41 S. E. 698; Sikes v. Commonwealth, 17 Ky. Law Rep. 1353, 34 S. W. 902; Thompson v. Commonwealth, 13 Ky. Law Rep. 916, 18 S. W. 1022.)

There is evidence tending to show that Lewis won the money mentioned in the information from appellant Floyd Price, and there is also evidence in the record tending to show that he probably stole this and other money, together with a watch, from this appellant. If he obtained possession of the money mentioned in the information by either of such means he had no right or title to it.

There is evidence tending to show that appellants, if they committed the acts charged, forced the delivery of the $45 by Lewis to Price under the belief that the money so taken belonged to Floyd Price. If it were taken under such circumstances, under the bona fide belief that it was his and that he was entitled to its possession, Floyd Price at least would not be guilty of robbery, although he would be guilty of a criminal offense. (State v. Brill, 21 Ida. 269, 121 Pac. 79; Crawford v. State, 90 Ga. 701, 35 Am. St. 242, 17 S. E. 628; State v. Brown, 103 Mo. 365, 16 S. W. 406; Gables v. State (Tex. Cr.), 68 S. W. 288; Brown v. Commonwealth, 135 Ky. 635, 135 Am. St. 485, 21 Ann. Cas. 672, 117 S. W. 281; Higgins v. State (Tex. App.), 19 S. W. 503; People v. Vice, 21 Cal. 344; Triplett v. Commonwealth, 122 Ky. 35, 91 S. W. 281; People v. Ammerman, 118 Cal. 23, 50 Pac. 15.) For the giving of this instruction the judgment is reversed.

McCarthy, "William A. Lee and Wm. E. Lee, JJ., concur.