THE COURT. The defendant was charged, by information with having committed the crime of robbery by feloniously'taking from one Paul W. Whitcomb the sum of $198, accomplished by means of force and fear. The defendant was also charged with having been armed at the time with a deadly weapon. He was tried on his plea of not guilty and convicted of robbery in the first degree. He appealed from the judgment of conviction and from the order denying his motion for a new trial.
This is a case where admittedly the defendant is guilty of the crime of assault with a deadly weapon. The question is whether he had the right to have the jury pass upon his defense interposed to the charge of the crime of robbery.
It is undisputed that the defendant, at about half-past eleven o’clock on the night of December 19, 1936, took the sum of $198 from a tin box kept in the rear room of Whit-comb’s clock shop in the basement of the Jergins building in Long Beach; that the defendant was then armed with a pistol, and that he accomplished his purpose by putting Whit-comb in fear. The grounds of the appeal are (1), that the court refused to admit evidence offered in support of the defense that the taking was under a bona fide claim that the property taken belonged to the defendant and that the felonious intent necessary to complete the crime of robbery was therefore lacking; (2) that the court refused to instruct the jury upon the theory and proffered evidence of such defense; and (3) that the court failed to instruct the jury on the law applicable to the crime of assault with a deadly weapon, such a crime having been established by undisputed evidence, including the admission of the defendant.
Across the hall from Whitcomb’s clock shop a place called "Miller’s Tango Parlor” was in operation. During several [149]months prior to the date of the alleged offense the defendant had frequented Miller’s and during that period had lost in all about $1,000. He had played the game of ‘‘tango” at Miller’s on the night in question and lost about $55. The court refused to receive the defendant’s proffered testimony that the game of tango was a gambling or lottery game and illegal under the laws of this state. However, it appeared from the admitted evidence that in such a game the player purchased from the operator a number of cards at ten cents each, the price being collected before the commencement of the game. Cash prizes were paid to the holders of winning cards. Under the method of ‘ ‘ pay-off ’ ’ the holders of winning tickets were required to cash them by presenting them to Whitcomb, who deducted four per cent as a discount charge. Whitcomb moved back and forth between the parlor and his shop and carried money from the former to the latter, sometimes in loose bills and at other times in a tin box. He kept a separate fund in the box at his shop from which he paid the winners. It was from that box that the defendant took the sum of $198, which was its entire cash contents.
Upon his apprehension the defendant made a statement to one of the arresting officers that he had lost all he had at Miller’s; that he was merely going to get back his own money, and that he would have taken more had there been any more, because he had lost about $1,000 at Miller’s over a period of six months.
The Penal Code, section 211, defines robbery as the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. Robbery perpetrated by being armed with a dangerous or deadly weapon is robbery in the first degree and is punishable by imprisonment in the state prison for not less than five years. (Secs. 211a and 213, Pen. Code.) Section 20 of the Penal Code provides that in every crime or public offense there must exist a union or joint operation of act and intent. This requirement of union of intent and act has led to the uniform rule in robbery cases that there can exist no felonious intent when the owner takes his own specific property from the possession of another, even though the taking is under such circumstances as would constitute robbery if the possessor were the owner thereof. (People v. Vice, 21 Cal. 344, 345; People v. [150]Ammerman, 118 Cal. 23 [50 Pac. 15]; 22 Cal. Jur., p. 841; Johnson v. State, 24 Okl. Cr. 326 [218 Pac. 179]; People v. Hughes, 11 Utah, 100 [39 Pac. 492]; State v. Brill, 21 Idaho, 269 [121 Pac. 79]; Triplett v. Commonwealth, 122 Ky. 35 [91 S. W. 281]; Glenn v. State, 49 Tex. Crim. Rep. 349 [92 S. W. 806, 13 Ann. Cas. 774, 775], and eases cited in note; Temple v. State, 86 Tex. Crim. Rep. 219 [215 S. W. 965]; note, 135 Am. St. Rep., p. 485.) While there appears to be a conflict of authority on the question whether felonious intent is present when the defendant seeks the recaption of money lost by him at an illegal game (note, 135 Am. St. Rep., pp. 485-489), the weight of authority supports the conclusion that the intent to steal is lacking in such a case, for the law recognizes no title or right to possession in the winner. It is the law in this state that certain games of chance, such as lotteries, are illegal; that the winner gains no title to the property at stake nor any right to possession thereof; and that the participants have no standing in a court of law or equity. (Gridley v. Dorn, 57 Cal. 78 [40 Am. Rep. 110]; Bank of Orland v. Harlan, 188 Cal. 413, 421 [206 Pac. 75]; 16 Cal. Jur., p. 716.) In jurisdictions where such is the state of the law the weight of authority appears to favor the view that the recaption by force or fear of money lost at illegal games is not robbery, although the act may be punishable as an unlawful assault or trespass. (People v. Hughes, supra; Thompson v. Commonwealth, 13 Ky. Law Rep. 916 [18 S. W. 1022]; Sikes v. Commonwealth, 17 Ky. Law Rep. 1353 [34 S. W. 902]; Gant v. State, 115 Ga. 205 [41 S. E. 698]; State v. Price, 38 Idaho, 149 [219 Pac. 1049, 35 A. L. R. 1458], and note at p. 1461; notes, 57 L. R. A. 443; 13 Ann. Cas. 775; 21 Ann. Cas. 1139; 40 L. R. A. (N. S.) 805, 806.) The courts recognize that in such a case, whatever other element of crime may be present, there cannot exist an intent to steal or take feloniousty the property of another, which is an essential element of the crime of robbery. In People v. Hughes, supra, it was said: “In all criminal cases the question of intent is an important one. If this element is lacking, the general rule is that no offense has been committed. This rule is not only humane, but a contrary one would be opposed to all the principles which underlie human conduct as respects the bearing of individuals towards each other, and also as regards their position towards
It has been suggested that the decisions which hold that felonious intent is lacking when the accused retakes money lost at illegal gambling, are based on statutory law which gives a right of action to the loser to recover the money lost. (Note, 42 A. L. R., p. 742.) The law of Texas and Michigan appears to be consistent with that theory. (Blain v. State, 34 Tex. Crim. Rep. 448 [31 S. W. 369]; People v. Henry, 202 Mich. 450 [168 N. W. 534].) The decisions in Texas holding that the act is robbery are based on the absence of any statute giving legal redress. In Michigan it is held that such retaking does not constitute robbery because the loser is entitled to recover in an action in assumpsit or replevin. That view, however, does not necessarily form the exclusive basis upon which a charge of robbery has failed. A further basis appears to be that, where the winner obtains no valid title or right to possession of the money won (State v. Price, supra; Thompson v. Commonwealth, supra), the loser cannot have a felonious intent in taking it. The view which seems to be consistent with the declared policy in this state is that the complaining witness, being in a sense in pari delicto with the accused, should not be heard in a court of justice on a charge of robbery against one whose only purpose was to retake money lost at an illegal game. This view neither condones nor invites the commission of crime, inasmuch as the accused must pay the penalty for the violation of any applicable penal law.
It has also been held that in resisting the charge of robbery by a showing that the intention was the recaption [152]of money lost at an illegal game, it is not incumbent upon the defendant to prove that the money reclaimed was the identical money won from him. (Sikes v. Commonwealth, supra; Gant v. State, supra.) However, the accused must intend in good faith to retake his own property. The question of intent is one for the jury which may find, if the facts justify it, that the defendant’s expressed intent was a mere pretext resorted to as a cover for an intent to steal. (Crawford v. State, 90 Ga. 701 [17 S. E. 628, 629, 35 Am. St. Rep. 242].)
It follows that the trial court should have admitted evidence on the question of the legality of the game at which 'the defendant lost money, and should have given instructions requested by the defendant consistent with the views herein expressed. The jury should have been permitted to consider the question of the defendant’s intent as disclosed by all the evidence, including that offered and rejected. (People v. Keefer, 65 Cal. 232 [3 Pac. 818]; State v. Brown, 104 Mo. 365 [16 S. W. 406].) It was for the jury to determine whether Miller operated an illegal game at which the defendant lost sums of money; whether Whitcomb was the agent of the operator and handled the funds collected in the conduct of the game; whether the money taken by the defendant consisted of winnings from the parlor; whether the defendant’s expressed intent to get back his own money was bona fide or, because of remoteness from the time of loss or for any other reason, it was merely a pretext for an act of robbery.
The court did instruct the jury on the necessity of the union of act and felonious intent and in addition that “one cannot be guilty of robbery where the property taken belonged to him, even though the taking is accomplished by force or fear”. But the failure to instruct further on the theory of the defense that it was the defendant’s bona fide belief that the money was his own constituted prejudicial error on the record here presented.
The judgment and the order denying the motion for a new trial are and each is reversed.