{
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  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Tommy SANCHEZ, Defendant-Appellant",
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  "casebody": {
    "judges": [
      ". HENSLEY, C. J., and SPIESS, J., concur. ;"
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Tommy SANCHEZ, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Judge.\nA jury convicted defendant of unarmed robbery. His appeal raises three issues; one is dispositive. That issue is whether defendant\u2019s motion for a directed verdict should have been sustained.\nJuan Marrujo was using a restroom in a bar. Defendant entered the restroom, took a wallet containing money from Mr. Mar-rujo\u2019s pocket and backed out of the restroom. Defendant started running when the victim yelled.\nNo weapon was used. No blows were struck. No artifice was employed to obtain the wallet. Mr. Marrujo knew the defendant; however, no words were spoken.\nMr. Marrujo testified that defendant \u201c* * * pUt his hand in hack of me and took my purse, put his hand in my pocket.\u201d\nThe victim testified that in taking the wallet, defendant put his fist against Mr. Marrujo\u2019s back; he also testified that he didn\u2019t know whether a fist was made because defendant was behind him.\nAs defined in \u00a7 40A-16-2, N.M.S.A. 1953:\n\u201cRobbery consists of the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence.\u201d\nThus, robbery may be committed (1) by use of force or violence or (2) by-threatened use of force or violence. As ex-' plained in 2 Wharton\u2019s Criminal Law and Procedure, \u00a7 554:\n\u201cIt is essential that the defendant accomplish the taking of the property by means of force or violence or by intimidating or putting the victim in fear. The requirement is stated in the disjunctive so that the offense is committed if either force or fear is present though not both. * * * \u201d\nThe force or intimidation is the gist of the offense. Mitchell v. State, 408 P.2d 566 (Okl.Crim.1965).\nDefendant contends that the evidence fails to establish that either force or fear was used, that his crime, if any, was larceny rather than robbery.\nThe only evidence bearing on the question of force or fear is the testimony that defendant put his fist against the victim\u2019s back. We do not know the manner in which this was done; we do not know the victim\u2019s reaction to this act. Does the fist against the back, without more, constitute the force or fear sufficient to sustain a robbery conviction?\nWhere force is charged, the issue is not how much force was used, but whether the force was sufficient to compel the victim to part with his property. 2 Wharton, supra, \u00a7 555.\nWhere fear or intimidation is charged, \u201c * * * It is necessary to show that the circumstances were such as to cause a reasonable man to apprehend danger and that he could be reasonably expected to give up his property in order to protect himself. * * * That is, it is essential to show that the defendant did acts or said things which reasonably induced fear, and that the victim gave up his property because of the apprehension of danger caused by the defendant.\u201d 2 Wharton, supra, \u00a7 557.\nThus, the force or fear must be the moving cause inducing the victim to part unwillingly with his property. State v. Parsons, 44 Wash. 299, 87 P. 349, 7 L.R.A., N.S., 566 (1906). It must overcome the victim\u2019s resistance. Montsdoca v. State, 84 Fla. 82, 93 So. 157, 27 A.L.R. 1291 (1922). It must compel one to part with his property. Harris v. State, 118 Tex.Cr.R. 597, 39 S.W.2d 888 (1931). It must be such that the power of the owner to retain his property is overcome. People v. Williams, 23 Ill.2d 295, 178 N.E.2d 372 (1961).\nThere is no direct evidence that the fist in the back caused the victim to part with his property. From the fist in the back, we cannot infer that the victim was compelled to part with his wallet or that he apprehended danger. See Gonzales v. Shoprite Foods, Inc., 69 N.M. 95, 364 P.2d 352 (1961).\nThe situation here is comparable to those pickpocket or purse snatching cases, where even though there was some touching or jostling involved as the property was taken, the crime was larceny because of the absence of force or fear. See McClendon v. State, 319 P.2d 333 (Okl.Crim.1957); Harris v. State, supra; Polk v. State, 157 Tex.Cr.R. 75, 246 S.W.2d 879 (1952); Hammond v. State, 121 Tex.Cr.R. 596, 49 S.W.2d 779 (1931); Jones v. Commonwealth, 115 Ky. 592, 74 S.W.263 (1903); Colby v. State, 46 Fla. 112, 35 So. 189 (1903). Compare State v. Parsons, supra; Montsdoca v. State, supra.\nThe motion for directed verdict questioned the evidence to support the charge of unarmed robbery. The motion is to be determined by viewing the evidence in the light most favorable to the State. State v. Hinojos, 78 N.M. 32, 427 P.2d 683 (1967). So viewed, the motion should have been sustained. There is neither evidence nor inference that the wallet was obtained by use or threatened use of force or violence.\nThe judgment and sentence is reversed. The cause is remanded with instructions to set aside the judgment, dismiss the charge of unarmed robbery and discharge the defendant from custody.\nIt is so ordered.\n. HENSLEY, C. J., and SPIESS, J., concur. ;",
        "type": "majority",
        "author": "WOOD, Judge."
      }
    ],
    "attorneys": [
      "James A. Parker, Albuquerque, for appellant.",
      "Boston E. Witt, Atty. Gen., Donald W. Miller, Asst. Atty. Gen., Santa Fe, for ap-pellee."
    ],
    "corrections": "",
    "head_matter": "430 P.2d 781\nSTATE of New Mexico, Plaintiff-Appellee, v. Tommy SANCHEZ, Defendant-Appellant.\nNo. 43.\nCourt of Appeals of New Mexico.\nJune 30, 1967.\nJames A. Parker, Albuquerque, for appellant.\nBoston E. Witt, Atty. Gen., Donald W. Miller, Asst. Atty. Gen., Santa Fe, for ap-pellee."
  },
  "file_name": "0284-01",
  "first_page_order": 324,
  "last_page_order": 325
}