Opinion
42755 Record No. 7927.
September 1, 1972
Present, Snead, C.J., I'Anson, Carrico, Harrison, Cochran and Harman, JJ.
Robbery — Taking Not Proved.
Since "taking", an element of crime of robbery, was not shown by record, Commonwealth has failed to establish that robbery was in fact committed.
Error to a judgment of the Circuit Court of Fairfax County. Hon. Barnard F. Jennings, judge presiding.
Reversed and remanded.
Robert C. Watson, for plaintiff in error.
William F. Robinson, Jr., Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error.
A jury convicted Karl David Mitchell of robbery for the theft by force of $743.75 from the manager of a Burger Chef restaurant. The jury fixed punishment at five years in the penitentiary. The trial court imposed the sentence, and we granted Mitchell a writ of error.
The sole question to be resolved is whether the evidence was sufficient to establish that a robbery occurred.
Robbery, undefined in Code Sec. 18.1-91, is defined in our common law as " the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation." Mason v. Commonwealth, 200 Va. 253, 254, 105 S.E.2d 149, 150 (1958) (emphasis added). All elements of the common law offense must be proved beyond a reasonable doubt in order to establish that a robbery has occurred. Maxwell v. Commonwealth, 165 Va. 860, 864, 183 S.E. 452, 454 (1936).
We have searched the record in this case and have found no evidence that there was a taking of any money. Therefore, since this element of robbery was not proved, the Commonwealth failed to establish that a robbery was in fact committed.
Accordingly, the judgment will be reversed and the case will be remanded for a new trial if the Commonwealth be so advised.
Reversed and remanded.