I think the judgment should be affirmed. The two persons accused of robbery being armed with dangerous weapons and having the intent if *Page 856 resisted to kill or maim the person robbed, were convicted upon evidence amply sufficient to establish the elements of the offense, if the property alleged to have been stolen was the subject of larceny. The information is in two counts. The first count alleged that the property taken consisted of one Lincoln automobile of the value of one thousand dollars, and one Chrysler automobile of the value of five hundred dollars, and sixty cases of intoxicating liquor of the value of two thousand dollars of the property and goods of Sam Lord. The second count alleges that the property taken was one Lincoln automobile and sixty cases of intoxicating liquor of the same value and the property of Andrew Brown.
The verdict assuming it to be sufficiently definite in meaning recited that the jury found the defendants, naming them, guilty as charged. That was a general verdict upon both counts. Such verdict in this case was not so inconsistent in law as that a judgment of conviction could not rest upon it.
The only remaining question to be considered is whether the intoxicating liquor and the vehicles used to facilitate its transportation were property which may be the subject of larceny. Sec. 7157 Com. Gen. Laws, 1927.
The trial court both in the admission of evidence and his charges to the jury held that such property may be the subject of larceny. There was no error in such holding. See Arner v. State, 19 Okla. Crim. 23, 197 Pac. Rep. 710.
Section 7627 Compiled General Laws, 1927, has no relation to the subject in my view of the law. There is no contention that the whiskey and the automobile were without value, the defense being that Lord and Brown, had no property rights in the property because of the existence of Section 7627,supra. That statute denounces certain property as contraband and proscribes a procedure for its *Page 857 forfeiture, and it is the business of the State through its duly constituted officers to take the action which the law prescribes. The forfeiture takes place only upon the adjudication of the rights of the owner after hearing or opportunity to be heard on the facts. Then the statute operates upon such judgment leaving the court without any discretion in the matter. See State v. One Hudson Roadster Automobile, 104 Fla. 301, 139 South. Rep. 821.
It could never have been the purpose of the Legislature, notwithstanding the opinion in some quarters that legislation often discloses unconventional, even erratic purposes, to give to highwaymen the privilege to hold up under the threat of killing if resisted, a person in possession of contraband property and take it away from him by force. Nor may the language of the act referred to above be twisted into any such meaning.
One phase of the crime of murder in the first degree is the unlawful killing of a human being when committed in the perpetration or attempt to perpetrate any robbery. In such cases the element of premeditation is not involved and constitutes no ingredient of the offense. See Sec. 7137 Com. Gen. Laws, 1927.
If the property described in the information was not the subject of larceny and Brown or Lord had been killed by one of the persons accused of perpetrating the robbery, would the law permit them to say in defense of the charge of murder that the property which they took, not being the subject of larceny, that it could not be said that they had perpetrated robbery or attempted to perpetrate it, and as they were not charged with the unlawful killing of a human being from a premeditated design to take life they could not therefore be lawfully deemed to be guilty. Such would be the inevitable and to which the contention leads that the Act, Sec. 7157,supra, takes from the goods and chattels described the elements of property and renders it *Page 858 not such goods or chattels as are the subject of larceny.
I therefore concur in the conclusion that the judgment
should be affirmed.
BROWN, J., concurs.