ARK.] JENKINS V. STATE. 507 JENKINS V. STATE. Cr..3940
oi)inion delivered ' September 23, 1935. 1. ii0DBERY—SUFFICIENCY OF EVIDENCE.—Evidence that defendant grabbed and held a night watchman while defendant's companion took from him six slot machines and a pistol held sufficient to establish a felonious and violent taking by force and to jUstify a conviction for robbery. 2. ROBBERY—ELEi/IENTS.—Felonious taking of Property, either by force or by intimidation, is sufficient to constitute robbery, under Crawford & Moses' Digest, § 2410. 3. ROBBERYVARIANCE.—In a, prosecution for robbery NFliere the indictment , alleged the felonious and violent ;taking of property against . the will of ano . ther by putting him in fear, proof that ' the property was faken by force but without intiinidation held not a fatal variance, since it was not essential that both 'force and .intimidation .be employed to 'constitute robbery. Appeal from Pulaski Circuit Court, First Division; Abner McGehee, Judge ; affirmed. , John Jenkins' was convicted of robbery, and has appealed. S ' am E. Montgomery, Rob& L. Rogers, H, for appellant. Carl E. Bailey, Attorney General, and Gi4 E. Wit-lidnts, Assistant, for ' appellee. . MCHANEY, J. Appellant was Convicted of the cHme of robbery and sentenced -Co three years in the penitentiary. . For a reveral of the judgnien(against him, appel-. lant first says there is . no evidence of force or intimidation. In this he is in error, for' John ItutliewSki, the.night
508 JENKINS V. STATE., [191 watchman at the American Legion Club in North Little Rock, from whom the property was taken, testified that appellant grabbed . and held him While a coinpaniori, referred to by appellant as Red, robbed him of six . slot machines containing , from $30 to $90, and a pistol worth $20. Robbery is defined by statute, § 2410, Crawford & Moses' Digest, aS "the felonious -and violent taking of any goods,. money or other valuable thing froin the person of another by force or intimidation ; the manner of the force or the mode of intimidation is not material, further than it may show the intent of the offender.' This testimony was sufficient tO establish a felonious and violent taking by force. While Rutkowski testified that he was not put in fear and therefore not intimidated, it was not essential that both force and intimidation be.employed by the robbers. This court has held that it is sufficient in an indictment for robbery to allege that the taking was done by violence, without alleging intimidation. Clary v. State, 33 Ark. 561. It was there further held that : " The words of the definition of robbery are in the alternative 'violence or putting in fear,' and it appears that if the property be taken by either 'of these means, against the will of the party, Such taking . will be sufficient . to constitute robbery." The definition referred to in the above quothtion is .the, common-law definition of robbe T y, .but the statute makes no material change, simply substituting the word "intimidation" fOr the words "putting in fear." Appellant's defense was that the property was taken with Rutkowski's consent, and therefore no robbery , waS committed. He so testified and Said that his .coinpanion purchased the slot machines by previous arrangement. This was A disputed question . of fact which the jury has • . settled against him. It is also argued that, since the indictment alleged. the felonious and violent taking against the will . of 'Rut-kowski by putting him in fear, and since the proof showed he was not put in fear, this constituted a fatal variance. What we have heretofore said disposes of this argument. The proof is sufficient to support a finding that the taking was felonious and violent which imPlies . force. .
ARK.] 509 No error appearing, the judgment must be affirmed. It is so ordered.
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